K Gopi Krishna

O.S. No. 323 of 2023

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE-CUM-JUDICIAL

MAGISTRATE OF FIRST CLASS, AT NIZAMABAD.

Present: Kumaram Gopi Krishna,

Principal Junior Civil Judge-cum-

Judicial Magistrate of First Class, Nizamabad.

Thursday, the 23 rd day of April 2026

Original Suit No. 323 of 2023

Between:

Bantu Rajeshwar S/o. Late. Bantu Gangadhar, Age: 49 years, Occ: Money lending Business, R/o. H.No. 6-25-22, Dubba, Nizamabad.

... Plaintiff

AND

1. Jamulpuri Ranjith Kumar S/o. J. Jawaharlal, Age: 36 years, Occ: Pvt. Job, R/o. H.No. 6-21-219, Shastrinagar, Dubba, Nizamabad.

2. Bathanthe Lingoji S/o. Late. B. Rajaram, Age: 49 years, Occ: Profession Business, R/o. H.No. 6-21-280, Shastrinagar, Dubba, Nizamabad.

… Defendants

This case came before me in the presence of Mr M. Naresh Kumar, learned counsel for the plaintiff, and Mr A.M. Sharma, learned counsel for the defendants. After perusing the record and hearing the counsel for the plaintiff, the matter having stood over for consideration to this date, this Court delivered the following:

J U D G M E N T

1.This is a suit filed under Order VII Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (CPC), seeking a decree for recovery of 2,76,000/- (Rupees Two Lakhs Seventy-Six Thousand Only) along₹ with interest at the rate of 24% per annum from the defendants, from the date of the suit until realisation, in favour of the plaintiff.

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2.Brief facts averred in the suit: The plaintiff is engaged in the money- lending business under the name and style “Sri Raja Rajeshwara Swamy

Finance” at Dubba, Nizamabad. Defendant No.1 is acquainted with the plaintiff through defendant No.2. Defendants No.1 and 2 are cousins inter se. Defendant No.1 borrowed a sum of 2,00,000/- (Rupees Two Lakhs₹

Only) on 5.2.2020 as a hand loan for his personal and legal necessities.

Defendant No.1 agreed to repay the loan amount with interest at the rate of 2% per month and repaid the amount with interest on 7.11.2020. On 1.3.2021, defendant No.1 again approached the plaintiff seeking a loan of ₹2,00,000/- (Rupees Two Lakhs Only). As defendant No.1 had repaid the earlier loan amount, the plaintiff, without any hesitation, lent 2,00,000/-₹ (Rupees Two Lakhs Only) to defendant No.1 on 1.3.2021 itself in the presence of defendant No.2.

2.1.In this regard, defendant No.1 executed a demand promissory note on the same date in the presence of witnesses, promising to repay the loan amount with interest at the rate of 2% per month, and defendant No.2 stood as a guarantor. However, defendant No.1 was irregular in the payment of monthly interest, as he paid interest only for a period of 8 months out of 27 months. The amount accumulated towards interest on the principal amount of ₹2,00,000/- (Rupees Two Lakhs Only) from 1.3.2021 to 1.6.2023, calculated at the rate of 24% per annum, is ₹1,08,000/- (Rupees One Lakh Eight Thousand Only). Out of the said 23.04.2026 2 of 18 PJCJ and JFCM, NZB

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interest, defendant No.1 paid a total sum of 32,000/- (Rupees Thirty-Two₹

Thousand Only) towards interest for the months of April 2021, May 2021,

June 2021, October 2021, December 2021, June 2022, July 2022, and

October 2022. As a consequence, defendant No.1 is due a sum of ₹2,76,000/- (Rupees Two Lakhs Seventy-Six Thousand Only) to the plaintiff.

2.2.The defendants failed to repay the balance amount to the plaintiff despite repeated demands. Eventually, defendant No.1 issued a cheque bearing

No.235574 dated 2.6.2023 drawn on the State Bank of India, Godown

Road Branch, Nizamabad, for a sum of 2,76,000/- (Rupees Two Lakhs₹

Seventy-Six Thousand Only) towards repayment of the loan amount.

However, when the plaintiff presented the cheque through his banker in his savings account bearing No.520101218568157 with Corporation

Bank, Nizamabad Branch, Nizamabad, on 13.6.2023, it was returned unpaid due to insufficient funds, as per the cheque return memo dated 15.6.2023. Accordingly, the plaintiff intimated the same to the defendants; however, they did not respond appropriately. The plaintiff is entitled to recover the loan amount from both the defendants, as they are equally liable. Hence, the suit.

3.Brief facts averred in the written statement 1 : Defendant No.1 borrowed a hand loan from the plaintiff on 5.2.2020, and he executed two blank 1Filed by defendant No.1 and adopted by defendant No.2.

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promissory notes and a blank cheque as security for repayment of the loan amount. Defendant No.2 signed as a witness on the two blank promissory notes. Although defendant No.1 had repaid the loan amount with interest to the plaintiff, the plaintiff did not return the blank promissory notes and the cheque, stating that they were misplaced and that he would return them whenever he found them. However, the plaintiff misused the blank cheque of defendant No.1, which had been given as security for the loan borrowed on 5.2.2020. The defendants denied the remaining allegations and requested this Court to dismiss the suit.

4.After hearing both sides and considering the pleadings and material on record, the following issues were settled for consideration:

(1) Is the promissory note dated 01.03.2021 true, valid and binding on the defendants?

(2) Is the plaintiff entitled to the recovery of Rs.2,76,000/- along with future interest at 24% per annum from the date of suit to the date of realization, jointly and severally, from the defendants?

(3) Whether the plaintiff is a moneylender as defined in section

2(7) of the Telangana Money Lenders Act, 1349 F?

(4) Whether the plaintiff has complied with the provisions of section 3, section 5(1) (a) and (b) and section 6(1) and (2) of

the Telangana Money Lenders Act, 1349 F?

(5) To what relief is the plaintiff entitled?

5.To prove his case, the plaintiff filed an affidavit in lieu of his examination- in-chief (hereinafter referred to as “the examination-in-chief”), reiterating the contents of the plaint, and examined himself as PW1. Ex.A1 to Ex.A5 23.04.2026 4 of 18 PJCJ and JFCM, NZB

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were admitted in evidence. Gaddam Raju, one of the attestors to the promissory note dated 01.03.2021, filed his examination-in-chief as PW2, deposing in line with PW1. Defendant No.1 filed his examination-in-chief as DW1, reiterating the contents of his written statement.

6.Heard both sides. Perused the record.

7.Issue No.1: In summary, PW1 claims that he is a money-lender, that

DW1 borrowed a sum of 2,00,000/- from PW1 on 05.02.2020 and that₹ he repaid it in full. Subsequently, DW1 borrowed 2,00,000/- from PW1₹ once again on 01.03.2021, and executed a promissory note undertaking to repay the amount but this time he failed to repay it despite repeated demands. Eventually, DW1 issued a cheque bearing No.235574 dated 2.6.2023 for 2,76,000/- in favour of PW1, but it was dishonoured due to₹ insufficient funds.

7.0.1. On the other hand, DW1 alleges that he executed two blank promissory notes, in which defendant No.2 signed as a witness, and issued a blank cheque to PW1 in connection with the earlier loan of ₹2,00,000/- borrowed from PW1 on 05.02.2020. DW1 further claims that, despite repaying the loan amount, PW1 failed to return those documents, stating that they were lost, and that PW1 filed this case on false allegations.

7.1.Ex.A1 is the original promissory note dated 1.3.2021 executed by DW1, promising to repay 2,00,000/- with interest at the rate of 2% per month₹ 23.04.2026 5 of 18 PJCJ and JFCM, NZB

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to PW1 in the presence of PW2. Ex.A1 also contains the guarantee deed executed by defendant No.2, undertaking to repay the loan amount in the event of default by defendant No.1. Ex.A2 discloses the original money- lending licence bearing No.A1/398/2020 dated 7.9.2020 issued by the

Tahsildar, Nizamabad (North), granting a licence to PW1 to carry on the money-lending business from 10.9.2020 to 11.9.2021. It also comprises renewals of the licence every year from 2021–22 to 2024–25 by the

Tahsildar, Nizamabad (North).

7.1.1. Ex.A3 is the certified copy of the cheque bearing No.235574 dated 2.6.2023 drawn on the State Bank of India for 2,76,000/- issued by DW1₹ in favour of PW1. Ex.A4 is the cheque return memo dated 15.6.2023 citing the reason for returning Ex.A3 as “Funds insufficient”. Ex.A5 is the statutory notice issued by PW1 through counsel under Section 138 of the

Negotiable Instruments Act, 1881 dated 26.6.2023 to DW1, inter alia, calling upon him to pay 2,76,000/- within 15 days from the receipt of the₹ notice. Ex.A5 comprises the postal receipts and the consignment report, which establish that the notice was delivered to DW1.

7.2.PW2, in his examination-in-chief, deposed along the lines of PW1 and stated that he was the attesting witness to Ex.A1. In the cross- examination, PW2 stated that the loan transaction between PW1 and

DW1 took place on 1.3.2021 at about 11 AM in his presence and that the amount of 2,00,000/- was paid by PW1 to DW1 in cash. PW1, in his₹ 23.04.2026 6 of 18 PJCJ and JFCM, NZB

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cross-examination, stated that he scribed Ex.A1, and PW2 corroborated the same in his cross-examination.

7.2.1Additionally, DW1, in his cross-examination, admitted the following:

(a)that he paid a sum of 32,000/- to PW1 towards interest for the₹ months of April 2021, May 2021, June 2021, October 2021,

December 2021, June 2022, July 2022, and October 2022 in respect of the present suit transaction,

(b)that he issued Ex.A3 to PW1 for ₹2,76,000/- and that PW1 intimated him about the dishonour of Ex.A3 through Ex.A5,

(c)that PW1 has lodged a complaint against him under Section 138 of the Negotiable Instruments Act, 1881 vide STC-NI No.194 of 2023 regarding the dishonour of Ex.A3,

(d) that the signatures across the revenue stamps on Ex.A1 were affixed by him and that defendant No.2 affixed his signature below the guarantee deed at the bottom of Ex.A1, and

(e)that he did not lodge any police complaint against PW1 for the alleged misuse of the blank promissory notes and cheque issued by him to PW1.

7.3.It can be deduced from the above that DW1 has not disputed his signatures on Ex.A1 and Ex.A3, thereby indicating that he affixed his signatures on them. Since DW1 admitted the execution of Ex.A1 and issuance of Ex.A3, the presumptions under Section 118 of the Negotiable

Instruments Act, 1881 apply, namely that every negotiable instrument is presumed to have been made or drawn for consideration and on the date 23.04.2026 7 of 18 PJCJ and JFCM, NZB

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it bears, and that the holder is presumed to be a holder in due course unless the contrary is proved. To rebut these presumptions, DW1 must adduce evidence to create a probable doubt regarding the existence of consideration or the validity of Ex.A1 and Ex.A3.

7.3.1. However, DW1, apart from his oral evidence, did not adduce any cogent documentary evidence or examine any independent witnesses to create such probable doubt. Anyhow, in the cross-examination of PW1, the counsel for the defendants elicited that PW1 files his income tax returns in his personal capacity and not in the name of his firm, and that he did not disclose the loan transaction dated 5.2.2020 in his personal income tax returns. However, DW1 did not plead any of these facts in his written statement. Nevertheless, it is settled law that, in the absence of pleadings, no evidence in that regard can be considered. Even otherwise, the non-disclosure of the earlier loan transaction dated 5.2.2020 in the income tax returns of PW1 is irrelevant to the adjudication of the present case, moreso when it is not in dispute that DW1 borrowed and repaid the said loan.

7.4.The testimony of PW1 and PW2 is consistent, cogent, and reliable, and there is no material contradiction in their evidence. Nothing substantial has been elicited in their cross-examination to discredit their version. The admissions of DW1 in his cross-examination, coupled with the documentary evidence on record, clearly establish that DW1 borrowed 23.04.2026 8 of 18 PJCJ and JFCM, NZB

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the amount under Ex.A1, issued Ex.A3 towards discharge of the said liability, and failed to repay the same. It also establishes that defendant

No.2 stood as a guarantor under Ex.A1 and his liability is coextensive with that of DW1 as per Section 128 of the Indian Contract Act, 1872.

Hence, this Court holds that Ex.A1 is true, valid and binding on both the defendants. Accordingly, issue No.1 is answered in the affirmative.

8.Issues No.2 to 4: This Court framed issues No.32 and 43 in light of

Section 9(1) of the Telangana Money Lenders Act, 1349 F (hereinafter referred to as “the Act”). The provision is reproduced below for convenience and ready reference:

9. Procedure of Court in sit for recovery of loans: Notwithstanding anything contained in any law for the time being in force, in every suit relating to a loan:

(1) the Court shall frame and decide the issues whether the money-lender is a money-lender as defined in sub- section (7) of section 2, and whether he has complied with the provisions of section 3 and of clauses (a) and (b) of sub- section (1) of section 5 and sub-sections (1) and (2) of section 6; (2) if it is proved that PW1 is a money-lender as defined in sub-section (7) of section 2, but does not hold a licence granted under section 3, the Court shall dismiss his suit; (2-A) if it is proved that the money-lender has not complied with the provisions of clause (a) of sub- section (1) of section 5, or of sub-section (1) of section 6, or of section 8 and PW1‘s claim is 2Whether the plaintiff is a moneylender as defined in section 2(7) of the Telangana Money Lenders Act, 1349 F? 3Whether the plaintiff has complied with the provisions of section 3, section 5(1) (a) and (b) and section 6(1) and (2) of the Telangana Money Lenders Act, 1349 F?

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established in whole or in part, the Court may, in the circumstances of the case, disallow the whole or any portion of the interest due and may disallow the cost wholly or in part; (3) if it is proved that the money-lender has not furnished the debtor with a statement of account in accordance with the provisions of clause (b) of sub- section (1) of section 5 or of sub-section (2) of section 6, the Court shall, in computing the amount of interest, exclude the interest in respect of every period for which the money-lender has not furnished the debtor with the statement of account:

Provided that if the money-lender has, after the prescribed time, furnished the statement of account and the Court is satisfied that there was sufficient cause for not furnishing the statement earlier, the Court may, inspite of such default, include such period or periods for computing the interest.

Explanation:- If a money-lender has maintained his account and delivered the statement of account in the prescribed form and manner, it shall, inspite of any error or omission, be presumed that he has complied with the provisions of clauses (a) and (b) of sub-section (1) of section 5 and of sub-section (1) and (2) of section 6, if the Court is of opinion that such error or omission is accidental or immaterial and that the accounts are maintained in good faith.

8.1.Now, this Court shall determine whether PW1 is a money-lender. To determine whether PW1 is a money-lender as defined under Section 2(7) of the Act, it is imperative to refer to the definition of a money-lender under the Act. The provision is reproduced for convenience and ready reference:

2. ....

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(7) ‘money lender’ means a person including a pawn- broker, who, within the meaning of this Act, only advances loan in the ordinary course of his business or does so along with other business, and shall also include the legal representative of such person and the person claiming to be his representative on the ground of succession or assignment or otherwise.

8.1.1. PW1, in the plaint, pleaded and in his examination-in-chief deposed that he is a money-lender and that he lent the suit loan amount to DW1 under

Ex.A1, indicating that it was in the ordinary course of his business. PW1 produced Ex.A2 to establish that he possesses a valid licence for his money-lending business. Ex.A2 shows that PW1 held a money-lending license from 10.9.2020 onwards and renewed it annually up to 2024–25, which strengthens his claim that he was carrying on a money-lending business. Ex.A1, the promissory note for 2,00,000/- with 2% monthly₹ interest, and DW1’s admission that he paid 32,000/- towards interest for₹ several months also support the claim of PW1 that the suit transaction was a money-lending transaction. Furthermore, the defendants did not deny in their written statement the assertion made by PW1 in the plaint that he is a money-lender.

8.1.2. Additionally, PW1, in his cross-examination, asserted that he carries on the money-lending business. The counsel for the defendants neither challenged Ex.A2 nor the assertion of PW1 that he is a money-lender in the cross-examination of PW1. Given Ex.A2 and the above facts, this 23.04.2026 11 of 18 PJCJ and JFCM, NZB

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Court holds that PW1 is a money-lender as defined under Section 2(7) of the Act and that the bar under Section 9(2) is not applicable.

8.2.Since this Court has found that PW1 has complied with Section 3 of the

Act, it must now determine whether he has also complied with Section 5(1)(a) and (b) and Section 6(1) and (2) of the Act. To answer this issue, it is necessary to refer to Sections 3, 5, and 6 of the Act. Accordingly, they are extracted below:

3. Money lenders to get their names registered: (1) Every officer who has been authorised by Government under this Act shall maintain a register of money-lenders in such form and with such particulars as may be prescribed, such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872.

(2) Every money-lender, in order to get his name registered, shall present an application in writing in the prescribed form to the competent officer and the said officer shall on such application being presented, register the applicant‘s name and grant a licence in the prescribed form and written prescribed period:

Provided that the licensing authority may, if he has reason to believe that a money-lender is of undesirable conduct, refuse to grant or to renew a licence and shall record the reasons therefor. Where the licensing authority is a Tahsildar an appeal from his order shall lie to the Collector and to the Board of Revenue where the licensing authority is a Collector. The decision of the appellate authority shall be final.

(3) Every person making an application under sub- section (2) shall pay such licence fee not exceeding twenty- five rupees, as has been fixed for the district concerned.

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(4) A licence issued under sub-section (2) shall be valid for one year from the date of issue.

(5) (a) No money-lender shall carry on in any district the business of money-lending without obtaining a licence provided for in sub-section (2);

(b) If any person contravenes the provisions of clause (a), he shall be punished with rigorous imprisonment for a term which may extend to six months or with fine or with both. The fine imposed shall, in case of default, be recoverable as arrears of land revenue. The Collector shall have power to award punishment under this clause. An appeal against his order shall lie to the Sessions Judge;

(c) An offence under this sub-section shall be cognizable and bailable.

(6) [XXX]

5. Money lenders to maintain accounts and to furnish statements thereof to debtors: (1) A money-lender shall,–

(a) maintain a regular account of loan for each debtor separately;

(b) deliver to the debtor every year the prescribed statement of account signed by him or his agent specifying the amount of loan that may be outstanding against such debt or on the prescribed date. Such statement of account shall contain all transactions of loan entered into during that year. The said statement shall be in the language of the village office of the district for which the money- lender has obtained a licence.

(2) The account mentioned in clause (a) of sub- section (1) shall be so maintained that items of

principal and interest may be separately and clearly

ascertained and the balance of principal and interest shall be shown separately. The money- lender shall not be authorised to include the interest or any portion of interest in the principal. The opening balance of principal and interest shall be separately shown:

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Provided that if after a loan was originally advanced by a money-lender, a widow or minor becomes entitled to such loan, such widow or minor shall not be required to maintain the account and furnish the statement of account under sub-section (1) for a period of one year from the date on which such right accrued.

(3) The licensing authority or any person authorised by him may inspect the books of account of a money-lender for the purpose of satisfying himself that the provisions of this section are being complied with.

8.2.1. Although Section 9(1) of the Act mandates compliance with Section 6, it was omitted by the Telangana Pawn Brokers Act, 2002 (Act No.6 of 2002). Hence, compliance with Section 6 has become redundant. In light of the above, this Court must now ascertain only whether PW1 has complied with the provisions of Section 3 and Section 5(1)(a) and (b) of the Act.

8.2.2. Section 3 of the Act requires a money-lender to have his name registered and to obtain a licence from the competent authority. As stated above,

Ex.A2 proves that PW1 obtained a money-lending licence from the

Tahsildar, Nizamabad (North), and renewed it from year to year.

Therefore, based on Ex.A2, it can be safely concluded that PW1 has complied with the requirements under Section 3 of the Act.

8.2.3. Section 5(1)(a) requires the maintenance of a separate and regular account for each debtor, and Section 5(1)(b) requires the yearly delivery 23.04.2026 14 of 18 PJCJ and JFCM, NZB

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of the prescribed statement of account to the debtor. However, PW1 neither pleaded nor proved that he maintained a separate and regular account for DW1 or that he delivered the prescribed statement to DW1.

The consequences of non-compliance with Section 5(1)(a) and (b) of the

Act are explained in Section 9(2-A) and (3) of the Act. Since PW1 has failed to comply with Section 5(1)(a) and (b) of the Act, although he has proved the loan transaction, the claim for interest at 24% per annum from the date of the suit till realisation cannot be granted as a matter of right. In light of the above, this Court also finds it necessary to refer to Section 10 of the Act. The provision is extracted below:

10. Computation of interest: (1) The Government may, from time to time, by notification in the Telangana Gazette, fix the maximum rate of interest for any local area or class of business of money lending in respect of secured loans and unsecured loans.

(1-a) No money-lender shall levy charges other than compound interest and expenses mentioned in sub-section (3) of this section incurred by him in respect of loans.

(1-b) Whoever, being a money-lender, demands or charges or receives from a debtor interest at a rate exceeding the maximum rate fixed by the Government under sub-section (1), shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.] (2) The parties may include a stipulation in the agreement that if the sum payable as interest is not paid on the date fixed, under the agreement the money-lender may charge simple interest on such sum by way of damages from the date of default 23.04.2026 15 of 18 PJCJ and JFCM, NZB

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until it is paid, at a rate not exceeding half the rate of interest payable on the principal and the interest so charged shall not, for the purposes of this Act, be deemed to be part of the interest charged in respect of the loan.

(3) When property is given by way of security or mortgage nothing in this section shall prevent a money- lender from recovering the expenses incurred for investigating title to the property, the costs of stamp and expenses for registration of document and other expenses incurred which may be reasonable in the opinion of the Court, if the parties have agreed in writing to the levy and payment of such expenses, otherwise only expenses leviable under the 11Transfer of Property Act No. I of 1336 F or any other law for the time being in force, shall be allowed.

Explanation:— In cases where the transaction of loan is in kind or loan is in cash and its repayment in kind, or loan in kind and repayment in cash, the amount of principal and interest shall be determined according to the local market- price of the commodity at the time of taking and repayment of loan.

8.2.4. In view of Section 9(2A) and (3) read with Section 10 of the Act, the Court is empowered to disallow the whole or part of the interest and may also disallow costs wholly or in part; in the case of non-furnishing of the annual statement, interest shall be excluded for the relevant period where the money-lender has not complied with the requirements under Section 5(1)

(a) and (b) of the Act. Hence, although DW1 agreed to pay interest at 24% per annum on the principal amount under Ex.A1, such undertaking must yield to the restrictions contained in the provisions of the Act. Given the above, although PW1 is entitled to the principal amount, since PW1 23.04.2026 16 of 18 PJCJ and JFCM, NZB

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failed to comply with Section 5(1)(a) and (b) and did not produce the notification of the Telangana Government published in the Telangana

Gazette fixing the maximum rate of interest for any local area or class of money-lending business in respect of secured and unsecured loans in support of his claim for the rate of interest, this Court is prohibited under

Section 9(3) to exclude the entire interest claimed by PW1 on the

principal amount. Consequently, in view of Section 9(2-A) of the Act, this

Court is also not inclined to order costs.

8.3.Notwithstanding the above, this Court retains its discretion to grant pendente lite and future interest under Section 34 of the CPC.

Accordingly, this Court considering the facts and circumstances of the case, exercising its discretion under Section 34 of the CPC, intends to grant reasonable pendente lite and future interest on the principal amount of 2,00,000/-. Since this Court answered issue No.1 in the affirmative,₹

DW1 and defendant No.2 are held jointly and severally liable to repay the loan amount to PW1 with such interest as may be ordered by this Court.

Accordingly, issue No.2 is answered partly in the affirmative, issue No.3 in the affirmative, and issue No.4 in the negative.

9.Issue No.5: IN THE RESULT, the suit is partly decreed without costs.

Accordingly,

(a)defendants No.1 and 2 are ordered to pay the plaintiff, jointly and severally, a sum of 2,00,000/- (Rupees Two Lakhs Only), along₹ 23.04.2026 17 of 18 PJCJ and JFCM, NZB

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with interest at the rate of 12% per annum on the principal amount from the date of filing of the suit to the date of decree, and at the rate of 6% per annum on the principal amount from the date of decree to the date of realisation.

Typed, corrected and pronounced by me in the open Court on the 23 rd day of April 2026.

Sd/-

Principal Junior Civil Judge-Cum-

Judicial Magistrate of First Class, Nizamabad

APP ENDIX OF EVIDENCE

Witnesses Examined

Plaintiff Defendants

PW1Bantu RajeshwarDW1Jamalpur Ranjith Kumar

PW2Gaddam Raju

Documents Marked

Plaintiff

Ex.A1Original promissory note dated 01.03.2021 executed by defendant No.1 in my favour surety signed by defendant No.2. Ex.A2Original money lending license belonging to the plaintiff. Ex.A3Certified copy of cheque bearing No. 235574 of SBI Bank, Godown Road, Br. Nizamabad of defendant No.1 sisued in my favour. Ex.A4Certified copy of the cheque dishonour memo dated 15.06.2023 issued by the banker Union Bank of India, Nizamabad. Ex.A5Certified copy of statutory notice dated 26.06.2023, certified copy of the postal slips dated 26.06.2023 (2 in number) and certified copy of track consignment (2 in number).

Defendants

- Nil -

Sd/-

Principal Junior Civil Judge-Cum-

Judicial Magistrate of First Class, Nizamabad

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CC No. 121 of 2016

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) UNDER PCR ACT-CUM-III ADDITIONAL JUNIOR CIVIL JUDGE,

NIZAMABAD

Present: Kumaram Gopi Krishna,

Principal Junior Civil Judge, Nizamabad-Cum-

Judicial Magistrate of First Class, Nizamabad,

FAC: Special Judicial Magistrate of First Class (Mobile) under PCR Act-cum-III Additional Junior Civil Judge, Nizamabad.

Friday, the 19 th day of April, 2024.

Calendar Case No. 121 of 2016

Between:

The State., through Sub-Inspector of Police, P.S. I-Town.

… Complainant AND

1. V. Daya Sagar S/o. Durgaiah, Age: Not mentioned, Occ: Formerly, Executive Director, Dit B.C. Service Co-operative Society Limited, Nizamabad, R/o. Not mentioned.

2. Rajaramkar Avikshith S/o. Kamalakar Rao, Age: 46 years, Occ: Junior Assistant, R/o. Plot No.302, Siddivinayaka Apartments, Vinayaknagar, Nizamabad.

(This Court did not take cognizance of the offence against accused No.1 as he died by the time the chargesheet was filed) … Accused No.2

This case came before me in the presence of the Learned Assistant Public Prosecutor for the State and Mr M. Jagan Mohan, learned counsel for accused No.2; after perusing the record and hearing both sides, the matter stood over for consideration to this date, this Court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, I-Town Police Station laid a charge sheet against accused No.1 and 2 in crime No. 82 of 2011 for the offence 19.04.2024 1/20 Spl. JFCM (Mobile)-cum-III AJFCM

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punishable under section 409 of the Indian Penal Code, 1860 (hereinafter ‘the IPC’).

2.Brief facts of the case of the prosecution: On March 8, 2011, at 2:00

PM, Muppirisheti Chandra Sekar/ PW1 lodged a report at the Police

Station. He stated that the Vice-Chairman and Managing Director of the

A.P. Backward Classes Cooperative Finance Corporation Limited,

Hyderabad, had visited Nizamabad on January 18, 2011, as well as on

January 22, 2011, and January 24, 2011, at the Vice-Chairman and

Managing Director’s Office in Hyderabad. During these visits, an inquiry was conducted into the irregularities committed by Sri V. Dayasagar (accused No.1), the then Executive Director of the District Backward

Classes Service Cooperative Society Limited, Nizamabad, and R.

Avikshith (accused No.2), a Junior Assistant/Accountant.

2.1.PW1 reported that the Vice-Chairman and Managing Director directed him to file a complaint against accused No.1 and No.2 besides initiating disciplinary action against both and to place accused No.2 under suspension. Accordingly, accused No.2, Junior Assistant/Accountant has been placed under suspension vide Collector and Chairman, District

Backward Classes Service Cooperative Society Limited, Nizamabad,

Proceeding Rc.No.C1/280/2010, dated February 11, 2011. Disciplinary action was also being contemplated against accused No.2. Accused No.1 worked as the Executive Director of the District Backward Classes 19.04.2024 2/20 Spl. JFCM (Mobile)-cum-III AJFCM

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Service Cooperative Society Limited, Nizamabad, from January 21, 2006, to March 4, 2010.

2.2.Accused No.2 had been working in this Society since 1985, as Section

Writer from September 1, 1986, to August 31, 1995; and as Junior

Assistant from September 1, 1995, to February 11, 2011 (he has been under suspension since February 12, 2011). The District Collector and

Chairman of the Society directed him to file a criminal complaint with the local Station House Officer to prosecute accused Nos. 1 and 2 based on the inquiry report of the Vice-Chairman and Managing Director, A.P.

Backward Classes Cooperative Finance Corporation Limited, Hyderabad.

In view of the above, he furnished a detailed report item-wise on the misappropriation of funds by accused Nos. 1 and 2.

2.3.Item No.1: Misappropriation of funds amounting to Rs. 3,29,393/- on the hiring of vehicles: PW1 reported that the District Backward Classes

Service Cooperative Society Limited, Nizamabad, was recovering loans given to BC beneficiaries under various schemes up to March 2008. For the speedy and effective recovery of loans, permission was accorded to all the Executive Directors by the Vice-Chairman and Managing Director,

A.P. Backward Classes Cooperative Finance Corporation Limited,

Hyderabad, to engage one additional vehicle on a hire basis.

2.3.1. Specific instructions were issued by the then Vice-Chairman and

Managing Director to all the Executive Directors vide Letter No.

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135/C/2008, dated May 3, 2008, that the additional vehicle being used for the recovery of loans should be immediately dispensed with once the waiver of loans was contemplated. However, additional vehicles (two) were continued even after the specific instructions of the Vice-Chairman and Managing Director, causing a financial loss of Rs. 3,29,393/- as detailed below:

Sl.No.PeriodAmount that isActual amountExcess permissible to beincurred duringamount incurred towardsthe periodincurred hire charges

1.April 2008 toRs. 2,04,000/-Rs. 4,26,042/-Rs. 2,22,042/- March 2009

2.April 2009 toRs. 2,04,000/-Rs. 3,11,351/-Rs. 1,07,351/- March 2010

TotalRs. 4,08,000/-Rs. 7,37,393/-Rs. 3,29,393/- 2.3.2. The payments were made without the approval of the Collector and

Chairman from July 2007 onwards without maintaining Log Books and without entering into agreements with the owners of the vehicles. The

District Collector specifically endorsed to circulate the file with a Log Book when permission was sought to make payments over and above the permissible limit, stating that the vehicle covered a distance of more than 2,500 kilometres. Accused No.1, neglecting the orders of the Collector, had made irregular payments. Payments were made to different persons for the same vehicle in different months, including P. Ramreddy, who was working in the Society on an outsourcing basis.

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2.3.3. It is evident from the above that the additional expenditure of Rs.

3,29,393/- incurred is not only illegal but also without the permission of the Collector and without actually engaging the vehicles. Hence, it is a clear misappropriation of funds of the society and liable for criminal action besides the recovery of the amount along with interest. Accused No.2, the

Junior Assistant/ Accountant who dealt with the Accounts Section involved himself in the misappropriation of the above amount by not discharging his legitimate duties for which he is being paid. He paved the way for the

Executive Director to misuse the funds and thus colluded with him.

2.4.Item No.2: Misappropriation of funds amounting to Rs. 89,600/- and

additional unnecessary expenditure of Rs. 8,12,900/- on the

remuneration of outsourcing employees: The Executive Director was permitted by the Collector to utilize the services of one retired person on an outsourcing basis. However, the then Executive Director hired the services of eight employees, contrary to the orders of the Collector. The details of the persons appointed and their monthly remuneration are as follows:

Particulars of persons whose services were taken onMonthly an outsourcing basis during 2008-09 and 2009-10Remuneration

Two Computer OperatorsRs. 11,500/-

G. MalaviRs. 3,900/-

M. GangadharRs. 3,900/-

P. Ram ReddyRs. 3,900/-

Smt. BharathiRs. 3,900/- 19.04.2024 5/20 Spl. JFCM (Mobile)-cum-III AJFCM

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J. GangaramRs. 5,000/-

K. Sudershan RaoRs. 5,500/-

Total expenditure per monthRs. 37,600/-

Expenditure for two yearsRs. 9,02,400/- 2.4.1. The Vice-Chairman and Managing Director, Hyderabad, vide Letter No.

135/C/20908, dated May 3, 2008, instructed to discontinue the services of outsourcing employees to follow the economic measures. However, the then Executive Director continued their services, causing a financial loss to the Society to the tune of Rs. 9,02,400/-. Hence, he is liable for criminal action besides the recovery of the amount along with interest. One Smt.

Bharathi, one of the outsourcing persons to whom the remuneration was paid, never worked in the office except for 94 months, that too in the residence of accused No.1, the then Executive Director. She was paid Rs.

1,000/- per month.

2.4.2. Thus, the entire payment of Rs. 89,600/- is shown to have been made to the Agency, i.e., M/s. Swathi Printers, Nizamabad (which is not at all an outsourcing agency), towards the work shown to have been extracted from Smt. Bharathi comes under clear misappropriation of funds as detailed below:

Monthly RemunerationRs. 3,900/-

No. of months for which remuneration claimedx 24 months

Total amount claimedRs. 93,600/-

Amount paid to Smt. BharathiRs. 4,000/-

Amount misappropriatedRs. 89,600/- 19.04.2024 6/20 Spl. JFCM (Mobile)-cum-III AJFCM

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2.4.3. Accused No.2, who dealt with the Accounts Section, is also involved in the above additional unnecessary expenditure of Rs. 9,02,400/-, causing a loss to the Society, besides the misappropriation of the amount of Rs.

89,600/- by not discharging his legitimate duties for which he is being paid. Hence, he is liable for criminal action.

2.5.I tem No.3: Misappropriation of the amount of Rs. 1,20,000/- on

Natakaranga Dinotshava and “Shathabdi Celebrations”: Accused

No.1, the then Executive Director, has taken Rs. 1,20,000/- as detailed below:

Cheque No. 352513 dated 25.04.2008Rs. 20,000/- (towards expenditure for Nataka Ranga Dinotshavam)

Cheque No. 825563, dated 13.08.2008 Rs. 1,00,000/- (towards expenditure under Shathabdi celebrations)

TotalRs.1,20,000/-

The above amounts were taken without permission either from the

Collector or from the Vice-Chairman. It is highly irregular to utilize the funds of the Society/ Corporation for such purposes without any authority.

The amounts were still pending and unadjusted to date.

2.5.1. The withdrawal of such huge amounts without the permission of the

Collector and Chairman and for a purpose which is not in accordance with the bylaws of the Society is a criminal offence. Hence, it is a clear case of misappropriation of funds. Hence, he is liable for criminal action besides the recovery of the amount along with interest. Accused No.2 has not 19.04.2024 7/20 Spl. JFCM (Mobile)-cum-III AJFCM

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properly guided the Officer and equally failed to get the amount adjusted for the last 20 years and more. He has thus cooperated with the

Executive Director and involved himself in the misappropriation of Rs.

1,20,000/-. Hence, he is also liable for criminal action.

2.6.Item No.4: Misappropriation of funds amounting to Rs. 2,05,000/- incurred for “DSC 2008”: During 2008-09, accused No.1 has paid Rs.

2,05,000/- to staff and others to meet the expenses of DSC, 2008 without the orders of the Collector and Managing Director. Utilizing the funds of a

Corporation/ Society other than those specified in the bylaws of the

Society is highly irregular and a criminal offence, and amounts to misappropriation of funds. The amounts are still unadjusted. Hence, he is liable for criminal action besides the recovery of the amount along with interest. Accused No.2, who dealt with accounts section, has not properly guided the Officer and utterly failed to get the amounts adjusted over the last 20 years and more.

2.6.1. He has thus cooperated with the then Executive Director in the misappropriation of the above amount of Rs. 2,05,000/-. Hence, he is liable for criminal action.

2.7.Item No.5: Misappropriation of an amount of Rs. 10,000/- in payment of advocate fee: Smt. S.V. Indira, Advocate was appointed as the

Standing Counsel by the Vice-Chairman and Managing Director, A.P.

Backward Classes Cooperative Finance Corporation Limited, Hyderabad, 19.04.2024 8/20 Spl. JFCM (Mobile)-cum-III AJFCM

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to plead all the Court cases pertaining to all District B.C. Societies in the

State. Accused No.1 has drawn Rs. 12,500/- for the payment of the advocate fee as detailed below:

Cheque No. 209810, dated 14.07.2008Rs. 10,000/-

Cheque No. 825564, dated 19.08.2008Rs. 2,500/-

TotalRs. 12,500/-

Out of Rs. 12,500/-, he has paid an amount of Rs. 2,500/- to the above

Advocate under proper acknowledgment, keeping a balance of Rs.

10,000/- with him. He has not adjusted the entire amount till his date of transfer, which comes under misappropriation. Hence, he is liable for criminal action besides the recovery of the amount along with interest.

2.8.Item No.6: Misappropriation of an amount of Rs. 39,500/- on the purchase of contingency and electrical repairs: Accused No.1 has released an amount of Rs. 15,000/- in favour of Sri. P. Ram Reddy, an outsourcing employee, and Rs. 12,000/- in favour of Sri. Gangadhar, an

Attender. The purpose of releasing the amount is shown as Electrical repairs and the purchase of contingency. The purchases would have been made from the Agencies/ Firms, directly obtaining the bills and paid through crossed cheques. The Executive Director has failed to follow the procedure, released the amount and ensure the adjustments.

2.8.1. The action of the Executive Director is contrary to the specified procedure, which attracts criminal actions. Hence, he is liable for criminal 19.04.2024 9/20 Spl. JFCM (Mobile)-cum-III AJFCM

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action besides the recovery of the amount along with interest. It is evident from the above that accused No.1 has misappropriated an amount of Rs.

15,04,293/- as detailed below:

Hiring of vehiclesRs. 3,29,393/-

Additional unnecessary expenditureRs. 8,12,900/-

Nataka Dinosthavam & Shathabdhi UtshavaluRs. 1,20,000/-

DSC, 2008Rs. 2,05,000/-

Advocate FeeRs. 10,000/-

Contingency expenditure (Electric repairs and Rs. 27,000/- contingency expenditure)

Total: Rs. 15,04,293/- 2.9.Based on the above report, the Sub-Inspector of Police, Town-I,

Nizamabad/ PW7 registered a case in Cr.No. 82 of 2011 under section 409 of the IPC and took up the investigation of this case. PW7 examined

PW1 and recorded the statement. On 29.03.2011 at noon, accused No.1 came to the Police Station and surrendered himself before LW9/ N.

Venkateshwarlu, voluntarily confessing to having committed the offence.

LW9/ N. Venkateshwarlu arrested him by issuing an arrest memo and released him on bail on furnishing personal and surety bonds as per the orders of the Hon’ble Sessions Judge, Nizamabad. Similarly, on the same day and time, accused No.2 also surrendered himself before LW9/ N.

Venkateshwarlu, confessed to the offence, and was arrested and released on bail. Hence, the chargesheet.

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3.Accused No.1 died on 02.03.2014 before filing the chargesheet, hence, this Court has taken cognizance of the offence under section 409 of the

IPC against accused No.2. On the appearance of accused No.2, this

Court furnished them copies of the case.

4.Accused No.2 was examined under section 239 of the Cr.P.C for the offence punishable under section 409 of the IPC and the same was read over and explained to him in his vernacular language to which he pleaded not guilty and claimed to be tried.

5.The prosecution examined PW1 to PW8 and got Ex.P1 to Ex.P5 marked in evidence to prove the guilt of accused No.2. The evidence of LW9/ Mr

N. Venkateshwarlu was given up by the learned Additional Public

Prosecutor and the evidence of Narla Gangadhar/ LW5 was closed on 23.11.2022 on account of his death.

6.After the conclusion of the evidence on behalf of the prosecution, accused No.2 was examined under section 313 of the Cr.P.C by explaining the incriminating material appearing against them in the evidence of the prosecution which he denied and reported no defence.

7.Heard both sides. Perused the record.

8.Now the point that arises for determination is:

Did the prosecution prove the guilt of accused No.2 for the offence

under section 409 of the IPC beyond a reasonable doubt?

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9.Evidence on record: M. Chandra Shekar, the defacto complainant/ PW1 testified that accused No.1, the Executive Director of BC Corporation,

Nizamabad, and its Vice Chairman and Managing Director in Hyderabad, informed him about visiting the District BC Corporation, Nizamabad, to verify office records. He further stated that accused No.1 misappropriated approximately Rs. 15,00,000/- from the BC Corporation, Nizamabad office. The Vice Chairman and Managing Director in Hyderabad sent a report for filing a criminal case against accused No.1. With the permission of the District Collector, who is the Chairman of BC Corporation,

Nizamabad, he suspended accused No.2.

9.1.Additionally, he testified that as per departmental norms, one vehicle could be used on a hire basis for loan recovery with permission from the

Vice Chairman and Managing Director of BC Corporation, Hyderabad.

However, accused No.1 engaged an additional vehicle without obtaining permission and used it for two years without the knowledge of the Vice

Chairman and Managing Director. Accused No.1 neither entered into agreements nor maintained logbooks for these vehicles as required.

Accused No.1 and accused No.2 prepared bills without permission, misappropriating approximately Rs. 3,29,000/- for hiring vehicles.

9.1.1. He also mentioned that accused No.1 appointed eight persons on an outsourcing basis without following procedures or obtaining permission, misappropriating approximately Rs. 9,00,000/-. Furthermore, accused 19.04.2024 12/20 Spl. JFCM (Mobile)-cum-III AJFCM

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No.1 utilized funds without permission for various purposes, including celebrations and coaching expenses. He lodged a police report, and

Ex.P1 is the police report.

9.2.Mr K. Haridas, PW2 deposed that he assumed the position of Accountant at BC Corporation, Nizamabad, on 12.02.2011. During his tenure, an office inspection was conducted by an IAS officer named Sri. Ramaiah.

During this inspection, Sri. Ramaiah found evidence of misappropriation of funds and recorded statements from individuals involved. Sri. Ramaiah subsequently sent his inspection report to the District Office, i.e., BC

Service Co-operative Society, Nizamabad. In his report, Sri. Ramaiah noted the misappropriation of funds in various areas, such as the hiring of vehicles and the appointment of outsourcing employees. He instructed them to file a criminal case against accused No.1. Following his instructions, PW1 filed a criminal case against accused No.1.

9.3.Mr B. Indrakaran Reddy, PW3, testified that in 2007-08, he rented his

Jeep bearing No. AP-9-W-9714 to B.C. Corporation, Nizamabad, for Rs.

13,000/- per month, which was later increased to Rs. 17,000/- per month.

However, he stated that apart from this rental arrangement, he was not aware of the facts of the case. He could not recall whether the police had examined him in relation to the case.

9.4.Mr P. Rakesh, Investigation Officer/ PW7, testified that on 08.03.2011 at 14:00 hours, PW1 arrived at I-Town Police Station, Nizamabad, and filed 19.04.2024 13/20 Spl. JFCM (Mobile)-cum-III AJFCM

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a report. Based on this report, he registered a case under crime No.82 of 2011 for the offence under section 409 of the IPC. He further mentioned that he examined and recorded the statement of the report.

Subsequently, he handed over the case file to LW9, N. Venkateshwarlu,

Circle Inspector of Police, Nizamabad town, for further action.

9.5.Mr S. Saidaiah, the Investigation Officer/ PW8, testified that on 10.11.2011, he received the case file from LW9, N. Venkateshwarlu, and recorded the statements of PW1 to PW6 and LW5, Narra Gangadhar.

Subsequently, he was transferred to SB, Nizamabad, and handed over the case file to his successor, Srinivas, Inspector of Police. He further mentioned that he filed the charge sheet in the year 2014.

10.Point: To determine the point framed for determination, the prosecution must establish the ingredients of section 405 of the IPC, which deals with criminal breach of trust. In this regard, it is apposite to refer to a full-bench decision of the Hon’ble Supreme Court in N. Raghavender v. State of

A.P. 1 , which expounded on the essentials to attract the offence under section 405 of the IPC:

46. The entrustment of public property and dishonest misappropriation or use thereof in the manner illustrated under Section 405 are a sine qua non for making an offence punishable under Section 409 IPC. The expression “criminal breach of trust” is defined under Section 405 IPC which provides, inter alia, that whoever being in any manner entrusted with property 1(2021) 18 SCC 70 19.04.2024 14/20 Spl. JFCM (Mobile)-cum-III AJFCM

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or with any dominion over a property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property contrary to law, or in violation of any law prescribing the mode in which such trust is to be discharged, or contravenes any legal contract, express or implied, etc. shall be held to have committed criminal breach of trust. Hence, to attract Section 405 IPC, the following ingredients must be satisfied:

46.1. Entrusting any person with property or with any dominion over property.

46.2.Thatpersonhasdishonestly misappropriated or converted that property to his own use.

46.3. Or that person is dishonestly using or disposing of that property or willfully suffering any other person so to do in violation of any direction of law or a legal contract.

47. It ought to be noted that the crucial word used in Section 405 IPC is “dishonestly” and therefore, it pre- supposes the existence of mens rea. In other words, mere retention of property entrusted to a person without any misappropriation cannot fall within the ambit of criminal breach of trust. Unless there is some actual use by the accused in violation of law or contract, coupled with dishonest intention, there is no criminal breach of trust. The second significant expression is “misappropriates” which means improperly setting apart for ones use and to the exclusion of the owner.

48. No sooner are the two fundamental ingredients of “criminal breach of trust” within the meaning of Section 405 IPC proved, and if such criminal breach is caused by a public servant or a banker, merchant or agent, the said offence of criminal breach of trust is punishable under Section 409 IPC, for which it is essential to prove that:

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(i) The accused must be a public servant or a banker, merchant or agent;

(ii) He/She must have been entrusted, in such capacity, with property; and

(iii) He/She must have committed breach of trust in respect of such property.

49. Accordingly, unless it is proved that the accused, a public servant or a banker, etc. was “entrusted” with the property which he is duty-bound to account for and that such a person has committed criminal breach of trust, Section 409 IPC may not be attracted. “Entrustment of property” is a wide and generic expression. While the initial onus lies on the prosecution to show that the property in question was “entrusted” to the accused, it is not necessary to prove further, the actual mode of entrustment of the property or misappropriation thereof. Where the “entrustment” is admitted by the accused or has been established by the prosecution, the burden then shifts on the accused to prove that the obligation vis-à-vis the entrusted property was carried out in a legally and contractually acceptable manner.

10.1.Applying the facts of this case to the principles laid down in the above decision, the prosecution must establish that accused No.2 was entrusted with property or with any dominion over property and he has dishonestly misappropriated or converted that property to his own use. As per the prosecution, accused No.2 is accused of misappropriation and irregularities in the District Backward Classes Service Cooperative

Society Limited, Nizamabad, and is alleged to have colluded with accused No.1 in these activities. The prosecution failed to establish through documentary evidence that accused No.2 was entrusted with 19.04.2024 16/20 Spl. JFCM (Mobile)-cum-III AJFCM

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funds and he misappropriated them for his own use, which is one of the essential ingredient of section 405 of the IPC.

10.2.Additionally, as per Ex.P1, PW1 alleged that accused No.1 had misappropriated the entire funds and the substantial part of the allegations, if not the entire allegations, are found to have been levelled against accused No.1. However, accused No.1 passed away by the time the chargesheet was filed. There is nothing in the evidence adduced by the prosecution that accused No.2 after allegedly misappropriating the funds, has converted them to his own use. It is not the claim of the prosecution either. The prosecution except for alleging that accused No.2 colluded with accused No.1 in misappropriation of funds, failed to specify how much of the funds were misappropriated by accused No.2 and whether the trail was traced out.

11. Given the above, this Court holds that the prosecution failed to establish that accused No.2 was entrusted with funds and he misappropriated them for his own use. Hence, this Court holds that accused No.2 is entitled to an acquittal. Accordingly, the point is answered in the negative.

12.IN THE RESULT,

(a)accused No.2 is found not guilty of the offence punishable under section 409 of the IPC; accordingly, he is acquitted under section 248(1) of the Cr.P.C; 19.04.2024 17/20 Spl. JFCM (Mobile)-cum-III AJFCM

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(b)the bail bonds of accused No.2 shall stand discharged after the expiry of the period of six months from the date of this judgment as per section 437A of the Cr.P.C.

Typed, corrected and pronounced by me in the open Court on the 19 th day of April 2024.

Sd/-

FAC: Special Judicial Magistrate of First Class (Mobile) under PCR Act-Cum-III Addl. Junior Civil Judge, Nizamabad

APPENDIX OF EVIDENCE

Witnesses Examined

Prosecution

PW1M. Chandra Shekar

PW2K. Haridas

PW3B. Indrakaran Reddy

PW4Bharathi

PW5A. Chandra Prakash

PW6B. Ram Reddy

PW7P. Rakesh

PW8S. Saidaiah

Defence

NIL

Documents Marked

Prosecution

Ex.P1 Report

Ex.P2Section 161 of Cr.P.C statement of PW4

Ex.P3Section 161 of Cr.P.C statement of PW5

Ex.P4Section 161 of Cr.P.C statement of PW6

Ex.P5First Information Report 19.04.2024 18/20 Spl. JFCM (Mobile)-cum-III AJFCM

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Defence

NIL

Material Objects

NIL

Sd/-

Special Judicial Magistrate of First Class (Mobile) under PCR Act-Cum-III Addl. Junior Civil Judge, Nizamabad 19.04.2024 19/20 Spl. JFCM (Mobile)-cum-III AJFCM

CC No. 121 of 2016

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS

(MOBILE) UNDER PCR ACT-CUM-III ADDITIONAL JUNIOR CIVIL JUDGE,

NIZAMABAD.

Present: Kumaram Gopi Krishna, II Additional Junior Civil Judge-cum- II Additional Judicial Magistrate of First Class, Nizamabad, FAC: Special Judicial Magistrate of First Class (Mobile) under PCR Act-cum-III Additional Junior Civil Judge, Nizamabad.

Friday, the 19 th day of April, 2024.

Calendar Case No. 121 of 2016

1.Name of the complainantThe State through Sub- Inspector of Police, P.S., I-Town

2.Name of accusedRajaramkar Avikshith S/o. Kamalakar Rao

3.Nature of the offencesUnder sections 409 of the IPC

4.FindingFound not guilty.

5.Sentence Acquitted.

6.Date of occurrence of offence08.03.2011

7.Date of Complaint08.03.2011

8.Date of apprehension of 29.03.2011 accused

9.Date of Commencement of Trial 01.11.2018

10.Date of Closure of Trial16.04.2024

11.Date of Sentence or Order19.04.2024

12.Explanation of delay--

Sd/-

Special Judicial Magistrate of First Class (Mobile) under PCR Act-cum-III Addl. Junior Civil Judge, Nizamabad.

To:

The Hon’ble I Additional District and Sessions Judge, Nizamabad.

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CC No. 650 of 2021

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-I

ADDITIONAL JUDICIAL MAGISTRATE OF FIRST CLASS, BODHAN

Present: Kumaram Gopi Krishna

Principal Junior Civil Judge-cum-Judicial

Magistrate of First Class, Nizamabad.

FAC: I Additional Junior Civil Judge-cum-I

Additional Judicial Magistrate of First Class,

Bodhan.

Friday, the 02 nd day of February 2024

Calendar Case No. 650 of 2021

Between:

The State., Represented by the Forest Range Officer, Varni, Nizamabad.

… Complainant

AND

1. Luqman Affendi S/o. Late Ahmed Affendi, Age: 47 years, Occ: Business, R/o. Humayunnagar, Mehdipatnam, Hyderabad.

2. Imran Affendi S/o. Late Ahmed Affendi, Age: 50 years, Occ: Business, R/o. Humayunnagar, Mehdipatnam, Hyderabad.

3. Md Sharuk Khan S/o. Md. Naseer Khan @ Naseeb Khan, Age: 23 years, Occ: Driver, R/o. H.No. 2-72, Jakora village of Varni Mandal, Nizamabad District.

4. Shaik Raaz Ahmed S/o. Shaik Miya, Age: 50 years, Occ: Labourer, R/o. H.No. 2-72, Jakora village of Varni Mandal, Nizamabad District.

5. Md. Jameeluddin @ Mohmmed Jameel S/o. Md. Jahangir, Age: 61 years, Occ: Worker, R/o. MIG/100, Achanpally, Bodhan Mandal, Nizamabad District.

… Accused Nos. 1 to 5

This case came before me in the presence of the learned Assistant Public Prosecutor for the State and Mr T. Rajendranath Jadav, learned counsel for accused Nos. 1 to 5; after perusing the record and hearing both sides, the matter 02.02.20241FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

having stood over for consideration to this date, this Court delivered the following:

J U D G M E N T

1.The Forest Range Officer, Varni filed a complaint against accused Nos. 1 to 5 in crime No. 230 of 2020 for the offences punishable under sections 9, 2(16), 39, 55, 56, 57 r/w 51 of The Wildlife (Protection) Act, 1972 (hereinafter referred to as ‘the WLPA’).

2.Brief facts of the case of the prosecution: The Forest Range Officer,

Varni (PW1), lodged a complaint with this Court, alleging that on 20.12.2020 at 05:00 hours, acting on credible information, the DFO,

Vigilance, Hyderabad (PW4), along with a team, conducted surprise raids in Varni Mandal of Nizamabad District regarding illegal wildlife hunting. During the operation, PW4 and the team apprehended accused

Nos. 1 to 5, who were found in possession of licensed weapons equipped with silencers for rifles, night vision binoculars, bullets, and other equipment used for hunting black-naped Hare (Lepus nigricollis) which is listed in schedule IV under the WLPA.

2.1.Additionally, it was observed that accused Nos. 1 to 5 were unlawfully in possession of night vision binoculars and scopes, the possession or trade of which by civilians without permission from the Home Ministry is punishable under the law.

2.2.Based on the aforementioned incident, the Forest Beat Officer, Varni (PW9), filed a case under sections 9, 2(16), 39, 55, 56, 57 read with 51 02.02.20242FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

of the WLPA against accused Nos. 1 to 5, as per POR No. 02/053 dated 20.12.2020. The accused were apprehended by noon on the same day following proper protocol. The Assistant Director (VAH) of the Animal

Disease Diagnostic Laboratory in Kotagally, Shivajinagar, Nizamabad (PW10), conducted a postmortem examination on the carcass, determining it to be a black-naped hare and confirming that its death resulted from bullet wounds.

2.3.Following the disposal of the carcass in the presence of the Veterinary

Civil Assistant Surgeon from Nizamabad and the Forest Section Officer,

Mosra, alongside two independent witnesses, a portion of the carcass meat was forwarded to the Center for Cellular and Molecular Biology (CCMB), Hyderabad, for species identification, under Reference

Number 63/WL/Varni/2020-21 dated 20.12.2020. Subsequent analysis conducted by the CCMB confirmed the meat to be that of a black-naped hare. Additionally, the firearms, rifles, and ammunition confiscated from accused Nos. 1 to 5 were submitted to the State Forensic Science

Laboratory in Hyderabad for ballistic assessment.

2.4.According to the ballistics report, the firearms and rifles were found to be in operational condition. Accused No. 1 confessed to engaging in the hunting of wild animals as a hobby, utilizing his firearms and a vehicle bearing registration number AP 29 AN 0001. This vehicle was equipped with specialized roof and front-mounted focus lights, in addition to 02.02.20243FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

standard headlights, and had extra space between the seats designed to facilitate hunting activities. Consequently, the said vehicle was seized as it was instrumental in the commission of the offence. Therefore,

PW12 urged this Court to prosecute the accused accordingly.

3.This Court has taken cognizance of the offences punishable under sections 9, 39 r/w 51 of the WLPA and issued summons to accused

Nos. 1 to 5. Upon the appearance of accused Nos. 1 to 5, this Court provided them with copies of the case.

4.The case against accused No. 4 was abated on 28.04.2022 on account of his death. Hence, accused Nos. 1 to 3 and 5 were examined under section 239 of the Cr.P.C for the offences punishable under sections 9, 39 r/w 51 of the WLPA and found that there were sufficient grounds to presume that they had committed the above offences. Accordingly, charges were framed against accused Nos. 1 to 3 and 5 for the offences punishable under sections 9, 39 r/w 51 of the WLPA. The charges were read over and explained to them, and they pleaded not guilty, claiming to be tried.

5.Subsequently, the case against accused No. 5 was also abated due to his death on 22.02.2023. Later, the prosecution examined PW1 to

PW12 and got Ex.P1 to Ex.P7, and MO1 to MO23 marked as evidence.

The signature of PW1 on the panchanama is marked as Ex.P1, the signature of PW2 on the panchanama is marked as Ex.P2, the 02.02.20244FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

confession-cum-seizure panchanama is marked as Ex.P3, the spot panchanama is marked as Ex.P4, the Form C-Certificate of safe custody handed over to concerned PW9 is marked as Ex.P5, the

Sandisk flash drive 16GB is marked as Ex.P6, and the POR is marked as Ex.P7 through the prosecution witnesses.

6.Following the conclusion of the prosecution's evidence, accused Nos. 1 to 3 were examined under section 313 of the Cr.P.C. The incriminating material presented by the prosecution witnesses was explained to them, which they denied, and they reported having no defence.

7.Both sides were heard, and the record was perused.

8.Now, the point that arises for determination is:

Did the prosecution prove the guilt of accused Nos. 1 to 3 under

sections 9, 39 r/w 51 of the WLPA, beyond a reasonable doubt?

9.Evidence of record: Evidence provided by various witnesses reveals the sequence of events surrounding the incident on December 20, 2020.

PW3, a mediator for the panchanama along with another witness, accompanied authorities, including PW4 and Varni FRO staff, to Jakora

Village at Affandi Rice Mill. There, they discovered firearms, torchlights, a skinned dead black-naped hare, and five individuals identified as accused

Nos. 1 to 5. Subsequently, accused Nos. 1 to 5 were taken to the forest office in Nizamabad. In PW3's presence, PW4 interrogated accused Nos.

1 to 5, who confessed to hunting rabbits in the forest.

02.02.20245FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

9.0.1. Further, PW4, as the District Forest Officer, Vigilance-II, Hyderabad, received credible information about nocturnal wildlife hunting in Jakora village. Accompanied by his team, they proceeded to the village and discovered firearms, ammunition, and a skinned dead black-naped hare at New Affendi Rice Mill. Accused Nos. 1 to 5 confessed to hunting the hare, leading to their arrest and seizure of relevant items. PW5 and PW6 corroborated the events, detailing their response to the information received by PW4 and the subsequent discovery of firearms and a black- naped hare. They also identified accused Nos. 1 to 5.

9.0.2. PW7 attested to the panchanama of black-naped hare, alongside S. Nani (LW10). PW8 and PW9 received instructions to visit specific locations where they observed similar carcasses and conducted a panchanama.

Finally, PW11, having conducted postmortem examinations on hare carcass, and PW12, the FRO in Varni, provided additional insights into the case, detailing the confiscation of weapons, arrest of accused individuals, and subsequent legal proceedings. However, PW1 and PW2 recanted their previous statements, adding complexity to the case.

10.Arguments: The assistant public prosecutor presented her written arguments outlining the case's brief facts. She argued that the prosecution witnesses' evidence and identification of accused Nos. 1 to 5 establish their guilt. In support, she referenced a ruling by the Hon’ble 02.02.20246FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

Kerala High Court in Forest Range Officer vs. Aboobacker and Anr. 1, wherein it was held that confessions made to forest range officers are reliable as they are not subject to the limitations of section 25 of the

Indian Evidence Act, 1872, given that forest officers are not considered police officers.

10.0.1. Moreover, the assistant public prosecutor argued that the confessions of accused Nos. 1 to 5, recorded by PW4, who is a Deputy Conservator of

Forests, Nizamabad, are admissible under section 50(8) of the WLPA.

This creates a presumption under section 50(9) of the WLPA that accused

Nos. 1 to 5 are in possession, custody, or control of the black-naped hare, placing the burden of proof on them to refute it.

10.1.In contrast, the defence counsel asserted that PW12, the investigating officer, lacked the authority to investigate the case or file a complaint under section 55 of the WLPA, and contended that:-

(a)The Varni Police have registered another case against accused

Nos. 1 to 5 in CC No. 558 of 2021 under sections 429 of the

Indian Penal Code, 1860, and section 30 of the Arms Act, 1959.

However, the documents from that case have not been presented in this case.

(b)PW3 is listed as a witness for the panchanama, but his testimony suggests he acted as a witness for the confession-cum-seizure panchanama. Notably, Ex.P3, the confession-cum-seizure panchanama, does not mention the name of PW3.

11989 CrLJ 2038 02.02.20247FAC: I AJCJ and I AJMFC, NZB

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(c)The prosecution has failed to establish the authenticity of Ex.P3.

(d)Although PW5 and PW6 are listed as eyewitnesses, their testimonies do not mention anything about the panchanama or the seizure of the black-naped hare.

(e)While PW7 is listed as a witness for the inquest, the inquest panchanama has not been presented as evidence.

(f)Ex.P7 lacks essential details of the crime.

(g)There is a discrepancy regarding who conducted Ex.P3; while

PW10 claims to have conducted it according to his testimony,

PW4 also claims to have done so.

(h)Initially, a chargesheet was filed by a different investigating officer, and the current complaint has been filed by PW12. However, no explanation has been provided for discarding the first chargesheet and filing a second one by PW12. Additionally, the first investigating officer was not examined.

(i)The alleged confessional statements of accused Nos. 1 to 5 have not been substantiated by the prosecution. The prosecution only managed to have the spot panchanama (Ex.P4) marked but failed to prove its authenticity.

(j)PW11 stated that the black-naped hare died due to internal bleeding resulting in shock, whereas the complaint alleges that it was killed by a bullet injury. Moreover, the prosecution did not submit the PME report as evidence.

(k)The prosecution has not adequately proven the specific overt acts of accused Nos. 2 to 5.

10.2.The defence counsel argued that the decision cited by the prosecution in 02.02.20248FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

Forest Range Officer (supra) does not apply to the present case. He referred to the recent ruling of the Hon’ble High Court of Kerala in

Prakashan vs. State of Kerala 2, which emphasized that a confession recorded by a forest range officer holds no legal validity. Additionally, they cited the decision of the Hon’ble Bombay Court at Goa in State (through

Range Forest Officer Netrawal – Goa) vs. Francis Masrenhas 3, which ruled that a confessional statement recorded by a Deputy Forest Range

Officer is not admissible as evidence.

11.Point: Upon reviewing the entire record, it becomes evident that the case is based on circumstantial evidence, primarily centred around the testimony of PW4. PW4, who seized the black-naped hare, weapons, and hunting paraphernalia from accused Nos. 1 to 5, serves as the linchpin of the prosecution's case, corroborated by other witnesses. The prosecutor emphasized that PW4, also a Deputy Conservator of Forests, recorded the confessions of accused Nos. 1 to 5, rendering them admissible under sections 50(8) and 50(9) of the WLPA. This invokes a presumption under section 57 of the WLPA that accused Nos. 1 to 5 possessed the black- naped hare, thereby shifting the burden of proof to them to refute it.

11.1.Under section 50(8) of the WLPA, PW4 is empowered to (a) issue search warrants; (b) enforce witness attendance; (c) compel document and material object production; and (d) receive and record evidence.

2Bail Appln. No. 9174 of 2022 dated 27.01.2023 32016 ALLMR (CRI) 2510 02.02.20249FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

According to section 50(9) of the WLPA, any evidence recorded under 50(8)(d) is deemed admissible in subsequent trials before a Magistrate if taken in the presence of the accused.

11.2.In his testimony, PW4 stated that on the evening of December 19, 2020, he received credible information about nocturnal wildlife hunting in Jakora village, Varni Mandal. The following day, he, along with PW5, PW6,

PW12, and Ramesh (LW6), proceeded to Jakora village at Affendi Rice

Mill, arriving at 5:00 AM. During the search of the premises, accused Nos.

1 to 5 were discovered with firearms and other hunting equipment, along with the carcass of a skinned black-naped hare. Accused Nos. 1 to 5 admitted to hunting the hare at 2:00 AM. Subsequently, PW4 conducted a spot panchanama (Ex.P4), seized various items used in the commission of the offence, and handed them over to the relevant officials for further proceedings.

11.3.According to the complaint, PW4 recorded the statements of accused

Nos. 1 to 5 in the presence of witnesses. PW4, PW5, PW6, and PW12 testified that accused Nos. 1 to 5 confessed to PW4 about committing the offence. As mentioned, as per section 50(9) of the WLPA, any evidence recorded under 50(8)(d) is admissible in subsequent trials before a

Magistrate. The crucial confessional statements of accused Nos. 1 to 5

would have been admissible as evidence; however, they were not presented for reasons unknown. Additionally, PW1 and PW2, alleged 02.02.202410FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

mediators to the confessions, changed their statements, yielding no substantial information despite cross-examination.

11.4.Furthermore, Ex.P4, the spot panchanama, indicates the seizure of weapons and other items allegedly used by accused Nos. 1 to 5 in hunting (MO1 to MO23). Although PW4 stated in his examination-in-chief that he conducted Ex.P4, during cross-examination, he acknowledged not having written it and that it lacks his signature. Additionally, PW4 mentioned in his subsequent examination-in-chief that he documented the entire incident through photographs and videos, stored in Ex.P6, a

SanDisk flash drive. However, it was revealed during cross-examination that there is no mention of recording the entire incident through photographs and videos in Ex.P4.

11.5.Furthermore, there is no indication in the complaint that the spot panchanama was recorded through photographs and videos, a fact confirmed by PW12, the investigating officer. Additionally, the testimony of

PW3, identified as a panch witness for the panchanama, suggests that he acted as a mediator in transferring accused Nos. 1 to 5 and the alleged weapons from PW4 to PW10. Although Ex.P3 is titled as a confession- cum-seizure panchanama, its contents reveal that it pertains to the transfer of accused Nos. 1 to 5 and the alleged weapons from PW4 to

PW10.

11.6.The aforementioned details cast doubt on the confessions of accused 02.02.202411FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

Nos. 1 to 5 and the seizure of the black-naped hare, weapons, and other paraphernalia. Based on these considerations, this Court concludes that the crucial connection between accused Nos. 1 to 5, namely, their confessional statements and the seizure of weapons and other items, remains unproven. Therefore, the presumption under section 57 of the

WLPA cannot be invoked.

12.Furthermore, according to the complaint, the black-naped hare seized from accused Nos. 1 to 5 was purportedly killed by bullet shots. However,

PW11, who conducted the postmortem examination of the hare, attributed its cause of death to "internal bleeding resulting in shock". Additionally, the postmortem examination (PME) report of accused Nos. 1 to 5 was not presented by the prosecution. Moreover, PW8, identified as an eyewitness in the complaint, testified that he conducted the panchanama of the black-naped hare in the presence of PW7 and S. Nani (LW10), and subsequently disposed of it by setting it on fire. Contradictorily, PW7 stated that PW11 conducted the panchanama of the black-naped hare, yet neither the complaint nor the testimony provides clarity on this discrepancy.

12.1.In conclusion, during his cross-examination, PW12 acknowledged the following points:

(a)He lacked authority under section 50(8) of the WLPA to investigate the offence.

02.02.202412FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

(b)The Forest Range Officer (FRO), Varni Veeresh, filed a chargesheet in 2021, which PW12 registered. Subsequently, in

June 2023, PW12 filed another chargesheet without direction from the Court.

(c)He did not specify the overt acts of accused Nos. 2 to 5.

(d)The complaint did not mention that the District Forest Officer (DFO), Vigilance, seized articles and transferred them to the DFO,

Nizamabad.

(e)Accused Nos. 1 to 5 were detained at 05:30 AM on 20.12.2020 and brought before the Court on 21.12.2020 at 08:20 PM for remand.

(f)The offences alleged against accused Nos. 1 to 5 are punishable by less than three years. PW12 denied the suggestion of the defence counsel that he deliberately neglected to issue notices under section 41A of the Cr.P.C and to comply with the directions of Arnesh Kumar vs. State of Bihar4.

(g)MO24, the Safari Vehicle, is registered in the name of the wife of accused No.1, but she was not examined.

(h)Ex.P4 lacks his signature.

(i)The firearms seized by PW4 have licenses.

12.1.According to section 55 of the WLPA, only specified individuals are authorized to file complaints for offences under the Act. PW12, a Forest

Range Officer, filed the complaint against accused Nos. 1 to 5, yet he failed to provide evidence demonstrating that he was empowered by either the Central Government or State Government, as mandated by the 4(2014) 8 SCC 273 02.02.202413FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

WLPA. As a result, the admission of PW12 during cross-examination that he lacked the authority to investigate coupled with the above findings, this

Court concludes that the case's foundation has crumbled.

12.2.Moreover, the rationale behind PW12's filing of the complaint, despite the

FRO Varni Veeresh already submitting a chargesheet in 2021, remains unclear. No explanation was provided by the learned assistant public prosecutor in their written arguments. Additionally, PW12's admissions reveal significant lapses in the investigation, as pointed out earlier.

Neither the complaint nor the testimonies of any witnesses specify the overt acts of accused Nos. 2 to 5. Given these circumstances, this Court finds that the prosecution has failed to establish the connection of accused Nos. 1 to 5 to the alleged crime beyond a reasonable doubt, thereby entitling them to an acquittal.

12.3.As a result, accused No.1 is entitled to the custody of MO1 to MO23.

MO24 returned to Asifa Begum, W/o. Luqman Affendi, for interim custody, as per the orders issued in Criminal Revision No. 01 of 2021 dated 07.04.2021, shall be made absolute after the expiry of appeal period.

Therefore, the point is answered in the negative.

13.IN THE RESULT,

(a)accused Nos. 1 to 3 are found not guilty for the offences punishable under section 39 r/w 51 of The Wildlife (Protection)

Act, 1972; as a result, they are acquitted under section 248(1) of 02.02.202414FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

the Cr.P.C;

(b)accused Nos. 1 to 3 are found not guilty for the offences punishable under section 9 r/w 51 of The Wildlife (Protection) Act, 1972; as a result, they are acquitted under section 248(1) of the

Cr.P.C;

(c)MO1 to MO23 shall be returned to its owner, accused No.1, on proper identification and acknowledgement, on the expiry of the appeal period. MO24 returned to Asifa Begum W/o. Luqman

Affendi vide orders in Criminal Revision No. 01 of 2021 dated 07.04.2021 shall be made absolute, after the expiry of the appeal period;

(d)the bail bonds of accused Nos. 1 to 3 shall stand discharged after the expiry of six months from the date of this judgment as per section 437A of the Cr.P.C.

Typed, corrected and pronounced by me in the open Court on the 02 nd day of February 2024.

FAC: I Additional Junior Civil Judge – Cum – I Additional Judicial Magistrate of First Class, Bodhan.

APPENDIX OF EVIDENCE

Witnesses Examined

Prosecution

PW1Mr Krishna Kumar

PW2Mr D Mahesh Kumar

PW3Mr T Chandra Mouli

PW4Mr M Raja Ramana Reddy

PW5Mr G Deva Das

PW6Mr Vijayanand

PW7Mr SK Iqbal 02.02.202415FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

PW8Mr P Prabhakar

PW9Mr K Sai Krishna

PW10Ms Sridevi

PW11Mr Dr. Kiran Desh Pande

PW12M.A. Habeeb

Defence

NIL

Documents Marked

Prosecution

Ex.P1 Signature of PW1

Ex.P2Signature of PW2

Ex.P3Confession cum seizure panchanama

Ex.P4Spot panchanama

Ex.P5Form C Certificate of safe custody handed over to concerned FRO Varni

Ex.P6Sandisk flash Drive 16-GB(Certificate under section 65-B is filed)

Ex.P7POR

Material Objects

MO130-60 sporting rifle with scope

MO20.22 sporting rifle with scope

MO3Amset bullet

MO4Used bullets 30-60(2)

MO5Used rifil bullets 0.22(2)

MO6Binocular

MO7Samsung Mobile

MO8Nokia Mobile

MO9Used rifle bullets (56 Nos. ), (0.22mm)

MO10Shoulder belt (03 Nos. )

MO11Two Knives

MO12Two-headed band lights 02.02.202416FAC: I AJCJ and I AJMFC, NZB

CC No. 650 of 2021

MO13L-N key set

MO14Unused rifle bullets (87 Nos. ), (30.06mm)

MO15Unused bullets (98 Nos. ), (0.22)

MO16Two gun cleaning kits

MO17Two gun silencers

MO18Two gun scopes

MO19Two torch lights

MO20Used bullets (141 Nos. )

MO21Three gun magazines

MO22Gun license of A1/ Luqman Affendi

MO23Five searchlights

MO24TATA Safari vehicle B.No. AP-29-AN-0001

FAC: I Additional Junior Civil Judge – Cum – I Additional Judicial Magistrate of First Class, Bodhan 02.02.202417FAC: I AJCJ and I AJMFC, NZB

CC No. 189 of 2023

IN THE COURT OF THE I ADDITIONAL JUNIOR CIVIL JUDGE-CUM-

JUDICIAL MAGISTRATE OF FIRST CLASS, BODHAN.

Present: Mr K.Gopi Krishna.

Principal Junior Civil Judge-cum-Judicial

Magistrate of First Class, Nizamabad.

FAC: I Additional Junior Civil Judge-cum-I

Additional Judicial Magistrate of First Class,

Bodhan.

Thursday, the 25 th day of January 2024

Calendar Case No. 189 of 2023

Between:

The State, Represented by the Sub-Inspector of Police, PS Yedapally, Nizamabad.

… Complainant

AND

Gothrala Nagaraju S/o. Gothrala Narsaiah, Age: 32 years, Caste: Mudhiraj, Occ: Auto Driver, R/o. H.No. 3-85/B, Manchippa Village, Mopal Mandal, District Nizamabad.

… Accused

This case came before me in the presence of the learned Assistant Public Prosecutor for the State and Mr Wajeed Hussain, learned counsel for the accused; after perusing the record and hearing both sides, the matter having stood over for consideration to this date, this Court delivered the following:

J U D G M E N T

1.The Sub-Inspector of Police, Police Station, Yedapally laid a chargesheet against the accused in crime No.68 of 2023 for the offences punishable under sections 457 and 380 of the Indian Penal Code, 1860 (hereinafter the ‘IPC’).

25.01.20241I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

2.Brief facts of the case of the prosecution: On the 5th of May 2023, the de facto complainant (PW1) filed a report at Yedapally Police Station, detailing that he and his brother, Konda Sailu (PW3), shared a home, with

PW3 residing upstairs and PW1 living downstairs with his family. On the previous day, the 4th of May 2023, around 1700 hours, PW1, along with his family, had visited his uncle's home in Indalwai. Upon returning on the 5th of May 2023, PW1 received a call from his brother that their house's doors had been opened by breaking the lock. In response, PW1 and his family rushed back home to find that unknown individuals had broken into the house.

2.1.The miscreants had opened the almirah lock using a key found on the dining table, scattered clothes, and opened the locker. The thieves had stolen a gold ring, purchased during PW1's marriage in 2015, weighing 1 tula, along with four smaller rings, each weighing one gram, and two earrings weighing 2 grams. Additionally, four silver buttulu weighing about 4 tulas, two silver kadiyalu weighing about 6 tula, and a Pulsar motorcycle bearing No. TS-16-FE-5414, registered in the name of PW1's wife

Lahari(PW2), were reported missing. PW1 estimated the value of the stolen gold ornaments at Rs. 35,000/-, the silver ornaments at Rs.

4,000/-, and the motorcycle at Rs. 80,000/-.

2.2.Responding to the report, Mr. K Panderao, SI of Police at PS Yedapally (PW7) registered a case (Cr.No. 68/2023) under sections 457 and 380 of 25.01.20242I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

the IPC and took up the investigation. During the investigation, PW7 examined and recorded the statement of PW1 and thereafter visited the scene of offences and conducted the scene of offences-cum-seizure panchanama in the presence of Mr Parige Sailu (LW5) and PW5. On the 5th of May 2023, at 1630 hours, PW7 received credible information from

PW1. It was revealed that PW4, a driver in the TSRTC, has seen the

Pulsar motorcycle bearing No. TS-16-FE-5414 heading towards

Nizamabad.

2.3.Acting on this information, PW7 and his team apprehended the accused, identified as Gothrala Nagaraju, on the bypass road near Madhav Nagar

Saibaba temple. After thorough interrogation, the accused confessed to his involvement in the theft pertaining to this case and several other cases in the presence of Mr Shivarathri Sailu (LW7) and PW6.

Accordingly, PW7 seized the Pulsar motorcycle bearing No. TS-16-FE- 5414, cash of Rs. 32,150/- from the possession of the accused. After conclusion of the confession-cum-seizure panchanama, PW7 effected the arrest of the accused and produced him before this Court for judicial remand. Later, PW7 laid the chargesheet.

3.This Court has taken cognizance of the offences under sections 457 and 380 of the IPC. On the production of the accused from the prison, this

Court furnished copies of the case to him.

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CC No. 189 of 2023

4.The accused was examined under section 239 of the Cr.P.C for the offences punishable under sections 457 and 380 of the IPC. It was found that there were sufficient grounds to presume that he had committed the above offences. Accordingly, charges were framed against the accused for the offences punishable under sections 457 and 380 of the IPC. The charges were read over and explained to him, and he pleaded not guilty, claiming to be tried.

5.To prove the guilt of the accused, the prosecution examined PW1 to PW7 and got Ex.P1 to Ex.P4 and MO1 and MO2 marked in evidence.

6.Following the conclusion of the prosecution's evidence, the accused was examined under section 313 of the Cr.P.C. The incriminating material presented by the prosecution witnesses was explained to him, which he denied, and he reported having no defence.

7.Both sides were heard, and the record was perused.

8.Now, the point that arises for determination is:

Did the prosecution prove the guilt of the accused under sections 457 and 380 of the IPC, beyond a reasonable doubt?

9.Evidence of record: The de facto complainant (PW1) deposed in his examination-in-chief that he and his brother (PW3) shared a home, with

PW3 residing upstairs and PW1 living downstairs with his family. On 04.05.2023, he, along with his family, went to his mother-in-law’s house at

Indalwai. On 05.05.2023, at about 06:00 AM, PW3 informed PW1 over 25.01.20244I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

the phone that the door lock of PW1's house and the almirah lock were broken open. Immediately, PW1 rushed to his house and noticed that a theft had been committed. Stolen items included a 1 tula gold ring, four rings belonging to his children, and a Pulsar motorcycle bearing No. TS- 16-FE-5414, registered in the name of his wife (PW2), all taken by unknown offenders.

9.0.1. On 05.05.2023, the police informed that an amount of Rs. 3,500/-, along with the Pulsar motorcycle bearing No. TS-16-FE-5414, were recovered.

9.1.PW2, in her examination-in-chief, deposed along the same lines as PW1.

9.2.PW3, in his examination-in-chief, deposed that on 04.05.2023, PW1 went to his in-laws' house with his family, locking his house. PW3 lived on the first floor, and PW1 lived on the ground floor. The next morning at about 06:00 AM, PW3 noticed that the door lock was broken open. Missing items included a 1 tula gold ring belonging to PW1, 4 rings of his children, cash amounting to Rs. 3,500/-, 10 tulas of silver ornaments, and a Pulsar motorcycle bearing No. TS-16-FE-5414. Immediately, PW3 informed

PW1, who returned and lodged a report with the police.

9.3.PW4, in his examination-in-chief, deposed that he knows PW1 and PW2.

On 04.05.2023, at midnight, a theft occurred in the house of PW1, and

PW4 learned about it the next morning at about 06:00 AM through a group of persons on the road near the house of PW1. Thereafter, PW4 went to attend his duties as an RTC bus driver, and while returning from 25.01.20245I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

JBS bus station towards Nizamabad at about 03:00 PM near Gandhari crossroads, he noticed the motorcycle bearing No. TS-16-FE-5414.

Therefore, he immediately informed one of the passengers and sought assistance in informing PW7 over the phone.

9.3.1. Following the instructions of PW7, he drove slowly, and when PW7 arrived at Madhavanagar bypass road, PW4 stopped the accused.

Accordingly, the accused was arrested by the police, and PW4 identified the accused in the court hall.

9.4.PW5, in his examination-in-chief, deposed that on 05.05.2023, at about 11:30 AM, the police conducted a panchanama in his presence and in the presence of Mr. Parige Sailu (LW5) relating to the commission of the theft in the house of PW1.

9.5.PW6, in his examination-in-chief, deposed that on 05.05.2023, at about 06:30 PM, the police stopped him and Mr. Shivarathri Sailu (LW7) near the railway gate, bypass road, Nizamabad, and instructed them to inquire with the accused. Accordingly, upon inquiry, the accused confessed to having committed theft of a black-colored Pulsar motorcycle bearing No.

TS-16-FE-5414 at Kurnapally and committed theft for an amount of Rs.

26,650/-. The said property was seen by PW6 and Mr. Shivarathri Sailu (LW7). The accused further confessed that he used some of the amount for his personal use, and the remaining amount was seized by the police under the cover of panchanama.

25.01.20246I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

9.6.PW7, in his examination-in-chief, deposed that upon receiving Ex.P1, he registered a case (Cr. No. 68/2023) under sections 457 and 380 of the

IPC and took up the investigation. During the investigation, PW7 examined and recorded the statement of PW1 and thereafter visited the scene of offence, conducting the scene of offenses-cum-seizure panchanama in the presence of Mr. Parige Sailu (LW5) and PW5. On the 5th of May 2023, at 1630 hours, PW7 received credible information from

PW1. It was revealed that PW4, a driver in the TSRTC, had seen the

Pulsar motorcycle bearing No. TS-16-FE-5414 heading towards

Nizamabad.

9.7.Acting on this information, PW7 and his team apprehended the accused, identified as Gothrala Nagaraju, on the bypass road near Madhav Nagar

Saibaba temple. After thorough interrogation, the accused confessed to his involvement in the theft pertaining to this case and several other cases in the presence of Mr. Shivarathri Sailu (LW7) and PW6.

Accordingly, PW7 seized the Pulsar motorcycle bearing No. TS-16-FE- 5414 and cash amounting to Rs. 32,150/- from the possession of the accused. After the conclusion of the confession-cum-seizure panchanama, PW7 effected the arrest of the accused and produced him

before this court for judicial remand. Later, PW7 laid the chargesheet.

10.Point: The evidence of PW1 to PW3 follows the same lines. The

Assistant Legal Aid Defence Counsel (ALADC) for the accused chose not 25.01.20247I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

to cross-examine PW1 and PW2 and did not elicit anything substantive in the evidence of PW3. The evidence of PW1 to PW3 establishes that a theft indeed took place in the house of PW1, and among other things,

MO1 and MO2 were stolen by the miscreants.

10.1.Furthermore, PW4 accurately provided the registration number of MO2 and identified the accused in the court hall. In the cross-examination by the ALADC, it was brought to light that PW4 did not state before the police that he had taken the assistance of one of the passengers to inform PW7 about the accused. The court considers this omission insignificant, given that the ALADC failed to discredit the credibility of his examination-in-chief. The ALADC only posed questions regarding the day’s schedule of PW4 on 05.05.2023 but did not follow up with any relevant suggestions establishing his defense.

10.2.Notwithstanding the above, one of the mediators for the confession-cum- seizure panchanama (PW6) in his examination-in-chief deposed that on 05.05.2023, he was stopped by the police at the railway gate, bypass road, Nizamabad, and instructed to conduct an enquiry with the accused.

However, in his cross-examination, he deposed that he was called after 4 days to the police station, and the details of the vehicle from the accused were recorded, and the confession-cum-seizure panchanama was recorded two days after the enquiry conducted by him with the accused.

The evidence of PW7 also indicates that the confession-cum-seizure 25.01.20248I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

panchanama was conducted on 05.05.2023.

10.3.A cumulative reading of PW4, PW6, and PW7 shows a contradicting account regarding the date of the confession-cum-seizure panchanama, which, in the opinion of the court, is quite grave. The said contradiction is material and casts suspicion on the prosecution's case. Furthermore, the evidence of PW7, the investigating officer, is silent on the procedure adopted by him in conducting the alleged confession-cum-seizure panchanama. Picking up a random person (PW6) without knowing his antecedents as a mediator to the confession-cum-seizure panchanama shows a major lapse in the investigation.

10.4.The Hon'ble Supreme Court, in Subramanya v. State of Karnataka 1, elucidated how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Indian

Evidence Act, 1872. The relevant excerpt is reproduced below:

84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to 12022 SCC OnLine SC 1400 25.01.20249I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

have hidden the weapon of offence etc. When the accused while in custody makes such statement

before the two independent witnesses (panch-

witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.

10.5.It is manifest from the evidence of PW7, as observed, that the procedure to be followed by the police in preparing the confession-cum-recovery panchanama, as elucidated above, is absent in the evidence of PW7.

Given the foregoing discussion, this Court holds that the accused is 25.01.202410I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

entitled to the benefit of doubt, and as a consequence, to acquittal.

Accordingly, the point is answered in the negative.

11.IN THE RESULT:

(a)The accused is found not guilty of the offences punishable under sections 457 and 380 of the IPC; accordingly, he is acquitted under section 248(1) of the Cr.P.C;

(b)MO1 – cash of Rs. 3,500/-, returned to PW1 vide Crl.MP.No. 150 of 2023 dated 22.06.2023, and MO2 – Pulsar motorcycle bearing

No. TS-16-FE-5414, returned to PW2 vide Crl.MP.No. 151 of 2023

dated 22.06.2023 for interim custody, shall be made absolute after

the expiry of the appeal period;

(c)The Superintendent, Central Prison, Nizamabad, is directed to set the accused at liberty forthwith if he is not required in any other case.

Typed, corrected and pronounced by me in the open Court on the 25 th day of January 2024.

FAC: I Addl. Junior Civil Judge – Cum – I Addl. Judicial Magistrate of First Class, Bodhan.

APPENDIX OF EVIDENCE

Witnesses Examined

Prosecution Defence

PW1Mr K Mohan

PW2Mis K Laharika

PW3Mr K Sailu -NIL- PW4Mr Shyam Sundar Reddy

PW5MrD Ravinder Goud 25.01.202411I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

PW6Mr Ramesh Goud

PW7Mr K. Pande Rao

Documents Marked

Prosecution Defence

Ex.P1Report

Ex.P2CDF of PW5 -NIL- Ex.P3Confession cum seizure panchanama of PW6

Ex.P4FIR

Material Objects Marked

Prosecution Defence

MO1 Cash of Rs. 3,500/- -NIL- MO2Pulsar motorcycle bearing No. TS-16-FE-5414

FAC: I Addl. Junior Civil Judge – Cum – I Addl. Judicial Magistrate of First Class, Bodhan.

25.01.202412I AJCJ and I AJFCM, NZB

CC No. 189 of 2023

CALENDAR AND JUDGMENT (IN THE FORM OF C.D.)

IN THE COURT OF I-ADDL. JUDL. MAGISTRATE OF FIRST CLASS,

BODHAN.

CC. NO. 672 of 2021

1.Date of offences:06-11-2020

2.Date of Complaint:06-11-2020

3.Date of apprehension:28-10-2021

4.Date of release:28-10-2021

5.Date of commencement of trial:17-06-2022

6.Date of closure of trial:29-12-2023

7.Date of Judgment :05-01-2024

8.Explanation of delay of remarks:--

Complainant

The State through P.S:Yedapally

Description of accused :

Mohamad Numan Ali S/o. Mohammad Ali, Age: 18 years, Caste: Muslim, Occ: Student, R/o. H.No. 15-54/4, Yedapally, Nizamabad. Present R/o. Pulang, Nizamabad.

offences Under Section:457 and 380 of IPC.

Finding:Not guilty

Sentence:Acquitted

FAC: I-Addl. Judl. Magistrate of First Class, Bodhan.

To The Hon’ble I-Addl. Dist. & Sessions

Judge, Nizamabad.

25.01.202413I AJCJ and I AJFCM, NZB

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS FOR THE TRIAL OF CASES UNDER TELANGANA PROHIBITION &

EXCISE ACT-CUM-IV ADDITIONAL JUNIOR CIVIL JUDGE, NIZAMABAD

Present: Kumaram Gopi Krishna, II Additional Junior Civil Judge-Cum- II Additional Judicial Magistrate of First Class, Nizamabad FAC: Special Judicial Magistrate of First Class for the Trial of Cases under Telangana Prohibition & Excise Act-Cum-IV Additional Junior Civil Judge, Nizamabad

Friday, the 30 th day of June 2023

Calendar Case No. 363 of 2016

Between:

The State., through Sub-Inspector of Police, PS Nizamabad – Rural … Complainant

AND

1. Bendla Bujji S/o. Chinna Lingam, Age: 35 years, Occ: Agriculture, R/o. Singhampal, Badis GP of Nizamabad Mandal,

2. Sakali Sailu S/o. Sailu, Age: 28 years, Occ: Agriculture, R/o. Singhampal, Badis GP of Nizamabad Mandal,

3. Katthula Poshetty S/o. Yellaiah, Age: 65 years, Occ: Agriculture, R/o. Singhampal, Badis GP of Nizamabad Mandal,

4. Jinigela Gangaram S/o Sayanna, Age:65 years, Occ: Agriculture, R/o. Singhampal, Badis GP of Nizamabad Mandal,

5. Meka Narayana S/o Ganganna, Age:60 years Occ: Agriculture, R/o. Singhampal, Badis GP of Nizamabad Mandal.

... Accused No.1 to 5

This case came before me in the presence of Mr B Rajesh, Learned Assistant Public Prosecutor for the State and Mr M Rajender Reddy, learned 30.06.2023 1 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB counsel for accused no.1 to 5; after perusing the record, hearing both sides, and the matter stood over for consideration to this date, this Court delivered the following:

J U D G M E N T

1.This case arises out of crime no. 382 of 2015 of Police Station,

Nizamabad – Rural against accused no. 1 to 5 for the offences punishable under sections 447, 427, and 506 r/w 34 of the Indian Penal

Code, 1860 (hereinafter ‘the IPC’).

2.The case of the prosecution in a nutshell: On 29.09.2015, at about 11:40 PM, the defacto complainant/ PW1 lodged a report stating that her father purchased an open plot bearing no. 242, Singampally village,

Badsi Gram Panchayat and constructed a hut and lived there for some years. PW1 further stated that she got permission from the Gram

Panchayat to construct a house by removing the hut and accordingly on 08.6.2015, she got holes dug for the basement but the elders of the village committee – accused no.1 to 5 and some others wrongfully entered into the said land and covered the basement. Thereafter, PW1 got walls constructed in her plot but on 12.07.2015, accused no.1 to 5 came to her plot and demolished the walls.

2.1.In this regard, the village elders advised that a survey be conducted over the plot and accordingly it was conducted. Thereafter, PW1 got the walls constructed once again, this time – up to the slab. However, on 26.09.2015, at about noon, accused no.1 to 5, once again, wrongfully 30.06.2023 2 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB entered into her plot, demolished the walls and threatened to kill her if she made any construction again. Therefore, she approached the Police – Nizamabad – Rural and lodged a report.

2.2.Based on the said report, Mr Mani, Inspector of Police, Police Station,

Nizamabad – Rural/ LW8 registered a case in crime no. 382 of 2015 under sections 447, 427, and 506 r/w 34 of the IPC and entrusted the case diary to Mr G. Satyam, Sub-Inspector of Police, Police Station,

Nizamabad – Rural/ PW7 for further investigation. Accordingly, PW7 dispatched the FIRs to all the concerned and examined and recorded the statement of PW1. Thereafter, PW7 along with PW1 went to the scene of the offence and conducted the scene of offence panchanama and drew a rough sketch in the presence of two mediators – Mr Seru Mallaiah/ PW5 and Mr Sagarla Gangadhar/ PW6.

2.3.Thereafter, PW7 examined and recorded the statements of Mr Shaik

Ahmed/ PW2, Mr Shaik Shamen/ PW3, Mr Konugal Prasad/ PW4 and Mr

Bodhan Sumanth/ LW5. On 30.09.2015, accused no.1 to 5 surrendered themselves before PW7 and confessed that they have committed the crime. Accordingly, PW7 issued notices to them under section 41A of the

Cr.P.C with a direction to appear before this Court as and when directed.

2.4.As per the investigation, it was revealed that the father of PW1 – Mr

Saleem had purchased 0.02 guntas of open plot in survey no. 385 30.06.2023 3 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB situated in Singampally village under Badsi Gram Panchayat about 23 years ago and constructed a hut and his family members resided there.

In the year 2015, PW1 obtained permission from the Badsi Gram

Panchayat to construct a house in the place of the hut in survey no. 385 and after that, PW1 got the basement done in the plot to construct the house but accused no. 1 to 5 had wrongfully entered into the plot and filled the basement with mud.

2.5.Two months after the above incident, when PW1 raised walls in her plot, accused no.1 to 5 once again demolished the walls by wrongfully entering into the plot on 12.07.2015. In this regard, on 16.07.2015, PW1 filed a requisition before the Divisional Panchayat Officer, Nizamabad seeking permission for the construction of the house after surveying the land. Accordingly, the Tahsildar, Nizamabad got the plot surveyed with a surveyor vide no. A5/ 13755/ 2015 dated 15.09.2015. After surveying the land, PW1 got the walls of her house constructed up to the slab but on 26.09.2015 at about noon, accused no.1 to 5 once again wrongfully entered into the said plot and demolished the house and threatened to kill PW1 if she constructed the house once again.

2.6.The said incident was witnessed by PW2 to PW4. Hence, PW7 filed a chargesheet against accused no.1 to 5 for the offences punishable under sections 447, 427, and 506 r/w 34 of the IPC.

30.06.2023 4 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB

3.This Court has taken cognizance of the offences punishable under sections 447, 427, and 506 r/w 34 of the IPC against accused no.1 to 5, and accordingly, issued summons to them. On their appearance, this

Court furnished the copies of the case to them and examined them under section 251 of the Cr.P.C for the offences punishable under sections 447, 427, and 506 r/w 34 of the IPC by explaining the substance of the same to which they pleaded not guilty and claimed to be tried.

4.To prove the guilt of accused no.1 to 5, the prosecution examined PW1 to

PW7 and got Ex.P1 to Ex.P8, and MO1 admitted in their evidence. The assistant public prosecutor closed the evidence of Mr Bodhan Sumanth/

LW5 and Mr M. Muni/ LW8 as PW4 and PW7 gave supporting evidence, respectively.

5.After the conclusion of the evidence on behalf of the prosecution, accused no.1 to 5 were examined under section 313 of the Cr.P.C by explaining the incriminating material appearing against them in the evidence of the prosecution which they denied and reported no defence.

6.The learned Assistant Public Prosecutor requested this Court to pass judgment on merits. Heard the learned counsel for accused no.1 to 5.

Perused the record.

7.Now the point for determination is:

30.06.2023 5 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB

Did the prosecution prove the guilt of accused no.1 to 5 for the offences punishable under sections 447, 427, and 506 r/w 34 of the IPC beyond a reasonable doubt?

8.Point: Mrs Shaik Reshma/ defacto complainant/ PW1 deposed that PW2 and PW3 are her siblings, and PW4 and Mr Bodhan Sumanth/ LW5 belong to her village. PW1 further deposed that in the year 1992, her father Mr Saleem purchased 242 square yards of land at Singampally village and constructed a hut and their family had resided in it. In the year 2015, PW1 obtained permission from the Gram Panchayat and her father got the plot dug for the basement. However, accused no. 1 to 5 along with other members, wrongfully entered into her plot and filled the pillar holes with mud.

8.1.On 12.07.2015, while she was watering the walls, accused no.1 to 5 demolished them, and when she questioned them, they abused her and threatened to kill her. Therefore, PW1 went to the MLA of her constituency and reported the same and thereafter applied for surveying the plot. After the survey was conducted, PW1 once again constructed the walls up to the slab, however, on 26.09.2015, accused no. 1 to 5 along with other members demolished the house and threatened her with dire consequences. Subsequently, PW1 went to the police and lodged a report on 26.09.2015, but it was registered by the police on 29.09.2015 after several requests.

30.06.2023 6 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB 8.2.Mr Shaik Haimed/ eyewitness/ PW2 deposed that in the year 2015, accused no.1 to 5 came to their land and closed the pits. After obtaining permission from the Gram Panchayat, the pits were dug once again and walls were constructed but accused no. 1 to 5 once again demolished them. Thereafter, the MRO was approached, and he conducted panchanama and tried to pacify the issue.

8.3.Mrs Shaik Shameem/ eyewitness/ PW3 deposed that on 08.06.2015, when the holes were dug for the basement, accused no. 1 to 5 along with some others, wrongfully entered into their plot and filled it. Once again on 12.07.2015, accused no. 1 to 5 went to the plot and demolished the walls constructed by them. On 26.09.2015, despite obtaining permission, accused no. 1 to 5 demolished the construction raised by them. On 28.09.2015, accused no. 1 to 5 once again went to their plot in the night and attacked them with sticks and iron rods and threatened that they would kill them if they construct anything in the plot as it belongs to the government. PW3 further deposed that the said incident was witnessed by PW4 and Mr Bodhan Sumanth/ LW5.

8.4.Mr K Prasad/ eyewitness/ PW4 deposed that on 26.09.2015, at about noon, accused no. 1 to 5 came to the plot of PW1 and demolished the walls and pillars constructed by her family. He further deposed that at the time of the incident, he was painting the house of one Mr Doddikinda 30.06.2023 7 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB

Raju. On 28.9.2015, accused no.1 to 5 once again went to the plot of

PW1 and demolished the walls and he witnessed the same with Mr

Bodhan Sumanth/ LW5 when they were returning from Nizamabad.

8.5.Mr G Satyam/ investigating officer/ PW7 deposed that on 29.09.2015 at 11:40 AM, Mr M Mani/ LW8 received a report from PW1 and he registered the crime in crime no. 382 of 2015 under sections 447, 427, and 506, r/w 34 of the IPC and entrusted the file to him. In the course of his investigation, PW7 recorded the statement of PW1 and later rushed to the scene of the offence along with her and conducted the scene of offence, panchanama and drew a rough sketch in the presence of PW5 and PW6. Thereafter, PW7 examined and recorded the statements of

PW2 to PW4 and Mr Bodhan Sumanth/ LW5. After completion of the investigation, he filed the chargesheet before this Court.

9.One of the essential ingredients under section 447 of the IPC is that there must be an entry into or upon property in the possession of another. However, the prosecution failed to establish the identity of the property which was allegedly trespassed by accused no.1 to 5. PW1 in her examination-in-chief failed to disclose the survey number of her plot and merely deposed the extent of the land. In her cross-examination,

PW1 deposed that the survey number of the plot is 382 and the extent is 242 square yards but she did not mention the same in Ex.P1 or her 30.06.2023 8 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB statement before the police. PW1 also admitted that Ex.P2 does not disclose the extent of the land, the schedule and her name.

9.1.PW1 also admitted that the survey numbers in Ex.P2 were mentioned as 384 and 385, whereas, the survey number of her plot is 382.

Furthermore, since PW2 and PW3 are the siblings of PW1, a reasonable expectation arises that they would identify the plot, but they did not depose anything about the identity of the plot in their examination-in- chief. In addition to that, PW2 in his cross-examination stated that the survey number of the plot is 242. PW3 in her cross-examination deposed that she does not know the number of the plot but stated that the survey number was 385 admeasuring 242 square yards which is ambiguous.

PW7/ the investigating officer deposed that he did not procure the title deeds of the plot of PW1 or measure the extent of the said land.

9.2.The counsel for accused no.1 to 5 elicited from the cross-examination of

PW7 that PW1 in Ex.P1 as well as in her statement before him stated the survey number of her plot was 242. Further, it was also revealed that the

Gram Panchayat permission produced by PW1 discloses that the survey number of the plot was 377/A. A reading of the above discloses that there is no clarity regarding the land into which accused no.1 to 5 allegedly committed criminal trespass. Additionally, to prove that accused no.1 to 5 committed mischief and thereby caused damage to the walls allegedly 30.06.2023 9 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB constructed by PW1, exhibited MO1 – a compact disc allegedly containing the photographs of the damaged wall.

9.2.1. However, PW1 in her cross-examination admitted that MO1 does not show the presence of accused no.1 to 5. There is nothing on record apart from the oral testimony of PW1 to PW3 to establish that accused no.1 to 5 allegedly trespassed, damaged the walls and threatened to kill PW1.

Though PW4 is cited as an eyewitness, he admitted in his cross- examination that the place of the alleged incident was not visible from the house of Mr Doddinkindi Raju which he deposed in his examination-in- chief to have been painting. He also admitted in his cross-examination that he identified accused no.1 to 5 at the behest of police.

9.3.A cumulative reading of all the above manifests that the identity of the land is not established by the prosecution and there are major lapses in the investigation done by PW7. The evidence of PW1 to PW3 regarding the identity of land is contradictory and the cross-examination of PW4 discloses that he could not have witnessed the alleged incident. There is also nothing convincing on the record to prove that accused no.1 to 5 damaged the walls constructed by PW1 and threatened her with death.

Therefore, this Court holds that the charges against accused no.1 to 5 under sections 447, 427, and 506 r/w 34 of the IPC remain not proved.

Accordingly, the point is answered in the negative.

30.06.2023 10 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB

10.IN THE RESULT,

(a)accused no.1 to 5 are found not guilty of the offences punishable under sections 447, 427, and 506 r/w 34 of the IPC; accordingly, they are acquitted under section 248(1) of the Cr.P.C;

(b)the bail bonds of accused no.1 to 5 shall stand discharged after the expiry of the period of six months from the date of this judgment as per section 437A of the Cr.P.C;

(c)the unmarked property, if any, shall be destroyed after the expiry of the appeal period.

Typed, corrected and pronounced by me in the open Court on the 30 th day of June 2023.

Spl. JMFC for the Trial of Cases under Telangana Proh. & Excise Act-Cum-IV AJCJ, Nizamabad

APPENDIX OF EVIDENCE

Witnesses Examined

Prosecution

PW1Smt. Shaik Reshma

PW2Sri. Shaik Haimed

PW3Sri. Shaik Shamen

PW4Sri. Konugal Prasad

PW5Sri. Seru Mallaiah

PW6Sri. Sagarla Gangadhar

PW7Sri. G. Satyam

Defence

NIL 30.06.2023 11 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB

Documents Marked

Prosecution

Ex.P1Police Report

Ex.P2Certified Panchanama copy of MRO, Nizamabad naksha and requisition

Ex.P3Original Grampanchayath house Tax receipt

Ex.P4Original Grampanchayath Building Permission copy

Ex.P5Signature of PW5 on CDF

Ex.P6Signature of PW6 on CDF

Ex.P7FIR

Ex.P8Scene of offence panchanama is marked as (CDF)

Defence

NIL

Material Objects

Prosecution

MO1CD containing the photos of demolition of house

Defence

NIL

Spl. JMFC for the Trial of Cases under Telangana Proh. & Excise Act-Cum-IV AJCJ, Nizamabad 30.06.2023 12 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB

IN THE COURT OF THE SPECIAL JUDICIAL MAGISTRATE OF FIRST

CLASS FOR THE TRIAL OF CASES UNDER TELANGANA PROHIBITION &

EXCISE ACT-CUM-IV ADDITIONAL JUNIOR CIVIL JUDGE, NIZAMABAD

Present: Kumaram Gopi Krishna, II Additional Junior Civil Judge-Cum- II Additional Judicial Magistrate of First Class, Nizamabad FAC: Special Judicial Magistrate of First Class for the Trial of Cases under Telangana Prohibition & Excise Act-Cum-IV Additional Junior Civil Judge, Nizamabad

Friday, the 30 th day of June 2023

Calendar Case No. 363 of 2016

1 Name of the complainantThe State through Sub-Inspector of Police, PS Nizamabad - Rural 2 Names of accused A1 Bendla Bujji A2 Sakali Sailoo A3 Kathula Poshetty A4 Jinigela Gangaram A5 Meka Narayana 3 Nature of the offences Section 447,427, & 506 r/w 34 4 FindingFound not guilty 5 SentenceAcquitted, under section 248(1) of Cr.P.C.

6 Date of occurrence of offence26.09.2015 7 Date of complaint/ report 29.09.2015 8 Date of apprehension of accused30.09.2015 9 Date of Commencement of trial 31.05.2019 10 Date of Closure of trial06.04.2023 11 Date of Sentence or Order30.06.2023 12 Explanation of delay--

Spl. JMFC for the Trial of Cases under 30.06.2023 13 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB

Telangana Proh. & Excise Act-Cum-IV AJCJ, Nizamabad 30.06.2023 14 Spl. JMFC (Proh & Excise)-cum-IV-AJMFC, NZB